These Marketing and Advertising Services Framework Terms (herein Terms) are between Wirex Limited, a company incorporated and registered in England and Wales with company number 09334596 whose registered office is at 25 Old Broad Street, London, England, EC2N 1HN (Wirex) and you (herein You) and apply in the performance by You of all services expressly referenced in a Service Order entered into by You with Wirex Limited which expressly references these Terms by incorporation therein. The term Your shall be construed accordingly.
The following definitions and rules of interpretation apply in these Terms.
Affiliates: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Assigned Materials: all of the Deliverables excluding any Deliverables or parts of them, which are Third-Party Materials in respect of which Wirex has approved, under Clause 13.6, the obtaining of a licence, as opposed to an assignment.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Campaign: the agreement campaign produced by You pursuant to the Service Order.
Commencement Date: The commencement date of the Services stated in the relevant Service Order.
control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Deliverable(s): all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of You for Wirex in the course of providing the Services, on any media (whether any media exist at the Commencement Date or are subsequently developed). The Deliverables shall include all items that are identified in a Service Order.
Expenses: expenses of the type detailed in Schedule 1.
Fees: the fees for the Services, as set out in Schedule 1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring 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 or unfair competition, 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, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Key Personnel: the individuals named and identified in any Service Order as key personnel.
Personnel: officers, employees, consultants, agents, representatives and advisers (including, in relation to You and/ or Your Key Personnel).
Representatives: in relation to a party, its employees, officers and advisers.
Services: the services to be provided by You to Wirex as set out in the relevant Service Order.
Service Order: a description of the Services that is signed by the duly authorised representatives of both parties in accordance with Clause 4.4, in the form set out in Schedule 1 to these Terms.
Subcontractor: any third party engaged by You to provide any part of the Services or any of the Deliverables.
Term: the term of these Terms as determined in accordance with Clause 3.
Territory: those countries in which the Services are to be provided as set out in the relevant Service Order. The Territory shall include websites and other globally accessible media to the extent that they are specifically targeted at persons located in such countries.
Third-Party Fees: fees payable by You to third parties relating to the provision of the Services which are not included in the Fees and are not Expenses.
Third-Party Materials: any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images.
Timetable: the timetable for the provision of the Services and the Deliverables as set out in the relevant Service Order.
Trade Marks: the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in a Service Order and/or notified by Wirex to You from time to time in writing.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Wirex’s Minimum Commercial Purposes: use by Wirex and its licensees and assigns of the deliverable in the media and territory and for the period specified in the Service Order or otherwise contemplated by the parties plus use in perpetuity for investor communications, archiving purposes, training and other internal and not primary agreement purposes.
Wirex’s Property: any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) belonging to Wirex and/or any of its Affiliates, which are provided to You by or on behalf of Wirex and/or otherwise come into the possession, custody or control of You in connection with the provision of the Services.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 The Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Schedules.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to writing or written includes email.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 References to clauses and Schedules are to the clauses and Schedules of these Terms and references to paragraphs are to paragraphs of the relevant Schedule.
1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. YOUR APPOINTMENT
2.1 These Terms are a framework agreement under which Wirex may request You to provide, and You shall provide to Wirex, the Services. In executing a Service Order, you agree to be bound by these Terms in their entirety.
2.2 You are appointed on a non-exclusive basis and Wirex is free to appoint other providers of the services set out in Clause 2.1 in respect of providing services identical or similar to the Services in the Territory or elsewhere.
These Terms commence on the Commencement Date and shall continue, unless terminated earlier in accordance with Clause 23, until either party gives to the other party 1 months’ written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
4. CAMPAIGN PLANS
4.1 If Wirex wishes You to undertake advertising services under these Terms, Wirex shall discuss with You the advertising services required in order to execute that advertising campaign. As soon as is practicable following such discussions, You shall, at no cost to Wirex, submit to Wirex in writing, for approval in accordance with Clause 4.2, a draft Service Order in the form set out at Schedule 1 or any other form agreed with Wirex.
4.2 Once a draft Service Order has been approved by Wirex, the duly authorised representatives of each party shall sign the draft Service Order.
4.3 Subject to Clause 4.4, if there is any inconsistency or conflict between the provisions of any Service Order and the provisions of the main body of these Terms, the provisions of the main body of these Terms shall prevail to the extent of that inconsistency or conflict.
4.4 If a Service Order references a specific clause in the main body of these Terms and states that a provision in the Service Order shall take precedence over it, the Service Order shall prevail.
5.1 Wirex may request, and You may recommend, a change to a Service Order (a Change) at any time before completion of the relevant Campaign. Where Wirex requests any Change, You shall promptly provide Wirex with details of the proposed changes as the other party may reasonably require and shall agree the terms of such change in good faith.
5.2 Where any change to a Service Order has been requested by Wirex or proposed by You, the parties will continue to perform their respective obligations under these Terms, without taking account of that requested or proposed change, until that change takes effect as agreed by the parties.
6. PERFORMANCE OF THE SERVICES
6.1 In consideration for the payment of the Fees by Wirex, You shall perform the Services for, and provide the Deliverables to, Wirex.
6.2 Without limiting any other of Your obligations under these Terms, You shall, and shall procure that each of Your Personnel shall, perform the Services in a professional manner, in accordance with:
(a) best industry practice, using all due skill, care and diligence;
(b) the provisions of these Terms and the relevant Service Order including the relevant Timetable (time being of the essence in relation to the performance of the Services and delivery of the Deliverables);
(c) reasonable written instructions of Wirex from time to time.
6.3 You shall ensure that, at all times while these Terms are in force, You hold all permits, licences and authorisations necessary to supply the Services and to enable You to comply with Your other obligations under these Terms.
6.4 For the avoidance of doubt, the Services shall not include media planning or buying services except where specifically agreed by the parties from time to time.
6.5 You shall not do anything, nor permit anything to be done by Your Personnel, Affiliates or Subcontractors, or the Personnel of Your Affiliates and Subcontractors, which is detrimental to:
(a) Wirex’s rights in or to Wirex’s Property, the Services or the Deliverables; or
(b) the reputation, image, value or goodwill of Wirex, its Affiliates, or the Trade Marks.
6.6 You will allocate sufficient Personnel with suitable experience, seniority and qualifications to perform the Services. You shall have a retention plan in place in order to maintain consistency in the management and delivery of the Services.
6.7 You shall co-operate with any third parties as Wirex may from time to time nominate for the purposes of performing the Services, and shall work with Wirex’s nominated suppliers efficiently and in good faith.
7. WIREX OBLIGATIONS
7.1 Wirex shall co-operate with You and shall provide to You, at Your request, such information concerning Wirex, Wirex’s requirements in respect of the Services as is reasonably necessary to enable You to perform the Services.
7.2 Unless a specific timeframe for Wirex’s response is specified, Wirex shall respond reasonably promptly to any request by You for information or approval.
7.3 Only written approval by a member of Wirex’s Personnel identified in the Service Order (or subsequently notified to Wirex) as authorised to give approval shall be written approval by Wirex for the purposes of these Terms. Written approval may be given by way of the manuscript signature of an authorised member of Wirex’s Personnel or an email from the work account of an authorised member of Wirex’s Personnel.
8. SERVICE STANDARDS
8.1 If at any time during the Term, in Wirex’s reasonable opinion, any Services performed or any Deliverables provided do not comply with the requirements of these Terms or are otherwise not of a sufficiently high standard, Wirex may notify You and You shall ensure that the Services are, to the extent possible, re-performed and any relevant Deliverables are resubmitted to Wirex within ten Business Days of Wirex giving notification to You, or such other period as Wirex and You may agree. If those revised Services and/or Deliverables, in the reasonable opinion of Wirex, still do not comply with the requirements of these Terms and/or are otherwise not of a suitably high standard, then Wirex shall notify You that either:
(a) Wirex rejects the revised Services and/or Deliverables, or any part thereof, in which case You shall not be entitled to charge any Fees, Third-Party Fees or Expenses in respect of those Services or Deliverables (or the rejected part of them) and Wirex shall re-assign ownership of all rights in the Deliverables to You; or
(b) notwithstanding the defects in the same, Wirex wishes to retain the right to use the Deliverables, in which case Wirex shall pay You an amount equal to the cost to You of producing the Deliverables, without any profit margin, such sum to be agreed between the parties.
8.2 If Wirex rejects the same Deliverable three times in any six (6) month period then, without prejudice to any other right or remedy of Wirex, Wirex may terminate these Terms by giving written notice of immediate termination to You, with no liability to Wirex whatsoever.
10.1 In consideration for the provision of the Services in accordance with these Terms, Wirex shall pay the Fees to You.
10.1 Except as otherwise agreed between the parties, Wirex shall pay all undisputed invoices submitted by You within 60 days of receipt of that invoice by Wirex, provided always that the invoice sets out Your VAT invoice details and details of the Services reasonably satisfactory to Wirex.
10.2 All sums payable under these Terms:
(a) are inclusive of any VAT or any other sales tax or duties (unless otherwise agreed in the relevant Service Order), which, where applicable, shall be payable by Wirex to You in addition; and
(b) shall be paid in British pounds sterling to the credit of Your bank account, details of which shall be notified to Wirex as and when necessary.
11. APPROVALS AND AUTHORITY
11.1 Once a Service Order has been agreed by the parties in accordance with Clause 4, You shall submit to Wirex, and/or any of Wirex’s Affiliates as Wirex may specify to You, materials for the Campaign, including copy, layouts, artwork, storyboards (including concept artwork) and scripts, for written approval. Wirex may request You to submit to Wirex several alternative storyboards or Campaign ideas which will then be reviewed by Wirex or may at Wirex’s request be taken to target consumers by You for input and feedback.
11.2 Wirex will use its reasonable endeavours to provide written approval or an update to You within ten Business Days of receipt of individual Deliverables produced by or on behalf of You.
11.3 In relation to any Deliverable You may proceed to produce the Deliverable and enter into contracts with third parties in relation thereto when it has obtained Wirex’s written approval of:
(a) the relevant copy, layouts, artwork, storyboards (including concept artwork) and scripts;
(b) the terms of acquisition of any Third-Party Material to be included in the Deliverable, in accordance with Clause 13.6.
11.4 During the Term, You shall immediately advise Wirex of any material changes in plans, schedules or work-in-progress previously approved by Wirex in accordance with these Terms.
12. COMPLIANCE OF CAMPAIGN AND DELIVERABLES WITH THE LAW
12.1 You shall ensure that each Campaign and all Deliverables (excluding Wirex’s Property) and their broadcast, publication or otherwise making available to the public, in all material respects as delivered by You and in accordance with the plans therefore as agreed between Wirex and You, shall:
(a) comply with all applicable laws in the Territory 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;
(b) not infringe the Intellectual Property Rights or proprietary rights of any third party; and
(c) not be defamatory, libellous, obscene or otherwise offensive.
12.2 You shall indemnify Wirex, Wirex’s Affiliates and their respective Personnel (together Wirex Indemnified Parties) against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Wirex Indemnified Parties (Losses) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against Wirex Indemnified Parties by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by You of Clause 12.1. The limitations of liability in Clause 20 shall not apply to the indemnity under this Clause.
12.3 The indemnity in Clause 12.2 shall not extend to any Losses if the same are caused by:
(a) any breach of these Terms by Wirex; or
(b) the negligence or fraud of any of any of Wirex Indemnified Parties.
12.4 You shall, at its own cost, take any legal and other advice (including pre-clearance advice from Clearcast and, as appropriate) as it considers necessary to ensure its compliance with Clause 12.1. You shall provide a copy of all legal and other advice obtained to Wirex on request, always provided that the provision of such advice shall not reduce Your liability under Clause 12.1.
12.5 If either You or Wirex becomes aware that there is risk that any Campaign or Deliverable is not in compliance with Clause 12.1, each shall promptly notify the other, and, without prejudice to any other right or remedy of Wirex, You shall make any modifications which may be necessary to remedy that defect in the Deliverables or Campaign. Any modifications shall be at Your cost unless the problem was due to Wirex’s act or omission (and/or to any material error in Wirex’s Property and/or any information provided by Wirex to You in relation to the relevant Campaign) and, in relation to the Deliverables, provided the Deliverables are unaltered since delivery by Agency.
12.6 Wirex shall ensure that Your possession and use of Wirex’s Property in the exercise of Your obligations under these Terms shall not infringe the Intellectual Property Rights or proprietary rights of any third party.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 It is the intention of the parties that:
(a) Wirex shall own all Deliverables produced by You;
(b) Wirex shall own all Third-Party Materials comprised in Deliverables, where an assignment of such materials is available on commercially reasonable terms which have been approved by Wirex in accordance with Clause 13.6; and
(c) where no assignment of Third-Party Materials is available on commercially reasonable terms Wirex shall receive a direct licence of such materials for Wirex’s Minimum Commercial Purposes or such wider purposes as You and Wirex may agree, in accordance with Clause 13.6.
13.2 You hereby irrevocably, unconditionally and absolutely assigns to Wirex, 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 Assigned Materials whether created, developed or produced before, on or after the Commencement Date, in all countries and with the right to sue for damages and other relief for past infringement of any of those Intellectual Property Rights. For the avoidance of doubt, the assignment under this Clause 13.2 shall take effect from the date on which the relevant Assigned Material was or is created, developed or produced.
13.3 To the extent that Clause 13.2 is not effective to assign legal title to the Intellectual Property Rights in or to the Assigned Materials, then You shall assign to Wirex such Intellectual Property Rights as and when requested by Wirex by executing any assignment documents reasonably requested by Wirex. Until such time as those Intellectual Property Rights are assigned to Wirex, You shall hold all such Intellectual Property Rights on trust for Wirex and Wirex shall have an exclusive worldwide, royalty-free licence under those Intellectual Property Rights and to use the Assigned Materials for any purpose.
13.4 You warrant that You have obtained or shall obtain from all Subcontractors an unconditional assignment without restriction of the legal and beneficial ownership of all existing and future Intellectual Property Rights subsisting in or relating to any Assigned Materials created or developed by such Subcontractors, in all countries, and that the assignment under Clause 13.2 includes the assignment of all of those Intellectual Property Rights.
13.5 You shall not incorporate and/or use Third-Party Materials in any Deliverable unless You have obtained the prior written consent of Wirex to do so. You shall give Wirex reasonable prior notice of its intention to include any such Third-Party Materials and at the same time shall notify Wirex in writing:
(a) whether an assignment to Wirex of the relevant Third-Party Materials can be obtained and the cost of obtaining it; and
(b) if no assignment of the relevant Third-Party Materials can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a licence of such materials for Wirex’s Minimum Commercial Purposes and any such wider purposes as Wirex may have notified to You. You shall not propose the inclusion of any Third-Party Materials in any Deliverable unless You are able to negotiate a licence of such materials for Wirex’s Minimum Commercial Purposes.
13.6 Following receipt of Your notice under Clause 13.5, Wirex shall notify the Agent in writing of whether inclusion of the relevant Third-Party Material is approved, and whether You are required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof. Wirex may also require You to negotiate prices at which the licence obtained may, at Wirex’s option, be extended.
13.7 You shall ensure that all licences of Third-Party Materials are granted directly to Wirex or such of its Affiliates as Wirex shall notify to You.
13.8 You shall, at any time on request, provide to Wirex 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 Wirex may reasonably request, and warrant that any usage rights information provided to Wirex shall be accurate and complete.
13.9 You shall procure that Your Personnel, Subcontractors and Your Subcontractors’ Personnel and all artists, photographers, actors, models and other third parties used by You 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 You, Wirex and Wirex’s licensees, sub-licensees, assignees and successors in title to the Deliverables or Wirex’s business. You shall promptly provide copies of any waivers to Wirex, on request.
13.10 You 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 You in connection with Deliverables, all necessary consents, releases, and approvals (in a form, and including those terms, as may be requested by Wirex) to use their work or images for Wirex’s Minimum Commercial Purposes and such wider purposes as Wirex may have notified to You under Clause 13.5(b). You shall obtain such consents, releases and approvals in writing before beginning production of the relevant Deliverables and provide copies of them to Wirex on request.
13.11 Wirex grants You a non-exclusive, non-transferable, royalty-free licence to use Wirex’s Property (excluding the Trade Marks) and the Deliverables solely to the extent necessary to enable You to provide the Services during the Term.
13.12 Wirex grants You a non-exclusive, non-transferable, royalty-free licence for the Term to use, and permit Your Subcontractors to use, the Trade Marks in the creation of the Deliverables and performance of the Services in the Territory in accordance with these Terms.
13.13 You shall only use the Trade Marks in accordance with Wirex’s instructions or as otherwise permitted under these Terms. No Deliverables incorporating the Trade Marks shall be supplied to any person other than Wirex or its Affiliates or disposed of in any way other than as specified by Wirex or its Affiliates.
13.14 You acknowledges that You will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall vest automatically in Wirex (and/or its Affiliates as applicable) and You shall not make any use of them except in accordance with the terms of these Terms.
13.15 You shall include on all Deliverables all relevant acknowledgements of Wirex’s rights in and to the Trade Marks as may be notified to You by Wirex from time to time.
14.1 You shall notify Wirex promptly on becoming aware of:
(a) any unauthorised use by any third party of any Intellectual Property Rights of Wirex (including the Trade Marks and/or any Intellectual Property Rights in the Deliverables); or
(b) any actual or threatened claim against Wirex by any third party in connection with the Services or Deliverables (or the use of the latter by Wirex or any of its licensees), in each case giving full details of that unauthorised use and/or claim.
14.2 Wirex shall have sole and complete control of any litigation or other proceedings arising out of any unauthorised use of its Intellectual Property Rights or any third-party claim against Wirex in respect of the Services or the Deliverables. You shall, and shall procure you’re your Subcontractors shall, provide Wirex with all assistance as may be reasonably required by Wirex to prosecute, defend or settle any such claim. You shall not take any action which might be reasonably anticipated to compromise any such claim. You shall not have any right to initiate any proceedings without Wirex’s written consent.
15.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives whether before or after the date of these Terms in including but not limited to:
(a) the existence and terms of these Terms;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(c) any information developed by the parties in the course of carrying out these Terms.
(d) any information detailed in Schedule 1.
15.2 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
(d) the parties agree in writing is not confidential or may be disclosed; or
(e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
15.3 Each party shall keep the other party’s Confidential Information confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these Terms (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
15.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
15.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 15.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
15.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
15.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Terms are granted to the other party, or to be implied from these Terms.
19.8 On termination of these Terms, each party shall:
(a) 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;
(b) 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); and
(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to Clause 23.
15.9 Except as expressly stated in these Terms, no party makes any express or implied warranty or representation concerning its Confidential Information.
15.10 The provisions of this Clause 13 shall survive for a period of five years from termination of these Terms.
16. DATA PROTECTION
16.1 If You acquire, from Wirex or any of its Affiliates, in the course of the provision of the Services, any personal data relating to any of the Personnel of Wirex and/or its Affiliates or any other individual (Wirex Personal Data), You shall:
(a) only process Wirex Personal Data in accordance with the instructions of Wirex and at all times in accordance with the EU General Data Protection Regulation 2016/679 , or any similar or equivalent legislation applicable in the Territory (together the Data Protection Laws);
(b) not otherwise modify, amend or alter the contents of Wirex Personal Data or disclose or permit the disclosure of any of Wirex Personal Data to any third party unless specifically authorised in writing by Wirex;
(c) take appropriate technical and organisational measures against unauthorised or unlawful processing of Wirex Personal Data and against accidental loss or destruction of, or damage to, Wirex Personal Data; and
(d) provide reasonable evidence of Your compliance with its obligations under this Clause 16.1 to Wirex on reasonable notice and request.
16.2 You shall notify Wirex within three Business Days if You receive a request from a data subject for access to any Wirex Personal Data. If You receive any complaint, notice or communication that relates directly or indirectly to the processing of any Wirex Personal Data or to either party’s compliance with the Data Protection Laws, You shall immediately notify Wirex and provide Wirex with full co-operation and assistance in relation to that complaint, notice or communication.
16.3 At Wirex’s request, You shall provide Wirex with a copy of all Wirex Personal Data held by it in the format and on the media reasonably specified by Wirex.
16.4 You shall not transfer any Wirex Personal Data outside the European Economic Area without the prior written consent of Wirex.
16.5 In this Clause 16, personal data, data subject and process shall have the meanings given to them in applicable Data Protection Laws.
17.1 You warrant and represent to Wirex that You are, and shall remain throughout the Term, the employer of all individuals who may work for You in providing the Services, and You shall be solely responsible for the remuneration, insurance and other obligations in respect of all these individuals. With effect from the date of any individual’s engagement in the provision of the Services, You shall be in compliance with all applicable legislation, including any social security rules and regulations. If Wirex is deemed liable for any taxes, social security charges or payments for pensions or for any other payments or claims or demands whatsoever relating to individuals working for You and providing the Services, You will fully indemnify and hold Wirex harmless (on an after-tax basis) in respect of any and all of these claims and demands.
17.2 It is the parties’ intention that neither the commencement nor the termination of any of the Services will give rise to a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE Regulations).
17.3 You shall fully indemnify and hold harmless Wirex and any person that provides services in replacement of any of the Services (Successor Supplier) from and against all employment claims incurred, suffered or paid by Wirex or Successor Supplier in relation to any employment rights or contract of employment (or termination thereof) of any employee or former employee of You or a Subcontractor that is claimed or deemed to have effect as between:
(a) Wirex or any Successor Supplier; and
(b) that individual (Transferred Employee),
under the TUPE Regulations.
17.4 The indemnities in Clause 17.1 and Clause 17.3 shall only apply provided Wirex or Successor Supplier (as appropriate) dismisses the Transferred Employee within ten Business Days of it becoming aware of the transfer or alleged transfer (You having been notified in advance of the termination).
17.5 The limitations of liability in Clause 20 shall not apply to the indemnity under this Clause 17.
17.6 You shall, if requested to do so by Wirex at any time during the period of three months before the termination of any of the Services (Rundown Period), redeploy all employees of You and/or any Subcontractor then engaged in providing the Services (or any of those employees as Wirex may specify) before the end of the Rundown Period so that those employees are not affected by any relevant transfer under the TUPE Regulations that may occur on the cessation of any of the Services.
18.1 You shall:
(a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements) and shall promptly report to Wirex any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of these Terms; and
18.2 You shall ensure that any person associated with You who is performing services or providing goods in connection with these Terms does so only on the basis of a written contract that imposes on and secures from that person terms equivalent to those imposed on You in this Clause 18 (Relevant Terms). You shall be responsible for the observance and performance by these persons of the Relevant Terms, and shall be directly liable to Wirex for any breach by these persons of any of the Relevant Terms.
18.3 Breach of this Clause 18 shall be deemed a material breach under Clause 23.1(a).
18.4 For the purpose of this Clause 18, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) and section 8 of that Act respectively. For the purpose of this Clause 18, a person associated with You includes but is not limited to any subcontractor of You.
19. REPRESENTATIONS AND WARRANTIES
19.1 Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into these Terms without obtaining the consent of any third party.
19.2 You represent and warrant to Wirex that:
(a) there are no commitments, conflicts of interest or other circumstances that will prevent or inhibit the provision of the Services by You;
(b) You have all the necessary resources (including Personnel) to perform Your obligations as set out in these Terms;
(c) these Terms do not conflict with, and do not and will not constitute a breach of, any other contract, agreement or undertaking to which You are or may become a party, and You will not during the Term enter into any contract, agreement or undertaking that conflicts with or constitutes a breach of the provisions and intentions of these Terms; and
(d) You are not aware of any matter that will or may cause You to be unable to comply with any of Your obligations under these Terms in a proper and timely manner.
20. LIMITATION OF LIABILITY
20.1 Nothing in these Terms shall limit or exclude Your or Wirex’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its Personnel or subcontractors (including, in the case of You, Your Subcontractors);
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
20.2 Subject to Clause 20.1, neither party shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with these Terms.
20.4 Subject to Clause 20.1 and Clause 20.2, Wirex’s total liability to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms shall be limited to the Fees, Third-Party Fees and Expenses paid by Wirex under these Terms in the 12-month period before the applicable breach.
20.5 Subject to Clause 20.1 and Clause 20.2, Your total liability to Wirex, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms shall be limited to the greater of £50,000 (fifty thousand Pounds Sterling) and three (3) times the total of the Fees, Third-Party Fees and Expenses paid and payable by Wirex under these Terms in the 12-month period before breach.
20.6 No amounts awarded or agreed to be paid under Clause 12.2, Clause 17.1 or Clause 17.3 shall count towards the cap on Your liability under Clause 20.5.
21.1 During the Term and for a period of six years afterwards, You shall maintain in force, with a reputable insurance company:
(a) professional indemnity insurance in an amount reasonably acceptable to Wirex;
(b) employer’s liability insurance in an amount reasonably acceptable to Wirex;
(c) all risks property insurance of a sum adequate to cover all Wirex Property in Your possession or control from time to time on a reinstatement basis;
(d) public liability insurance in an amount reasonably acceptable to Wirex; and
(e) such other insurance as is required by any regulatory or statutory or regulatory body anywhere in the Territory relevant to the regulation of advertising and/or the Services to be provided under these Terms.
21.2 You shall provide to Wirex, on reasonable notice and request, suitable evidence of each of the above insurance policies.
21.3 Without prejudice to the generality of Clause 21.1(c) You will insure Wirex’s Property and the Deliverables when in transit between You and third parties for the purposes of production or publication, and when in the possession of those third parties.
22. CANCELLATION OF CAMPAIGN PLANS
22.1 Wirex may cancel an individual Service Order without cause, by giving written notice of immediate cancellation to You (specifying the Service Order to be cancelled) at any time and for any reason.
22.2 On cancellation of any individual Service Order under Clause 18.1:
(a) You shall immediately cease performing all Services in relation to that Service Order only;
(b) You shall be entitled to invoice Wirex for any outstanding, properly incurred Fees, Third-Party Fees and Expenses in respect of that Service Order only, which shall be payable by Wirex in accordance with the provisions of Clause 10;
(c) You shall deliver to Wirex (or any third party specified by Wirex), promptly, in accordance with Wirex’s instructions, all Deliverables relating to the cancelled Campaign and existing at the date of that cancellation, whether or not then complete; and
(d) Wirex shall pay to You any sums payable by You to any third party under any legally binding commitment entered into by You, with the written approval of Wirex, in relation to the cancelled Service Order only, to the extent that You are unable to cancel or otherwise mitigate that commitment (except where those costs are already covered by any Fees, Third-Party Fees or Expenses paid or payable in respect of the cancelled Service Order).
22.3 Cancellation of any individual Service Order under this Clause 22 shall not affect the continuation in force of these Terms, including any other Service Order(s) entered into under these Terms.
23.1 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
(b) 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) 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 (being a company) 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;
(d) 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 (being a company) 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;
(e) 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 (being a company);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) 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;
(h) 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(i) 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 23.1(b) to Clause 23.1(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(k) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010); or
(l) any warranty given by the other party in Clause 19 of these Terms is found to be untrue or misleading.
23.2 Without affecting any other right or remedy available to it, Wirex may terminate these Terms at any time, by giving written notice of termination to You, that termination taking effect on the date of receipt of notice by You or any later date as may be specified in the notice, if:
(a) in any six-month period, You commit two or more material breaches of these Terms, whether or not it remedies those material breaches in accordance with Clause 23.1(a) above;
(b) Clause 8.2 applies;
(c) You challenge Wirex’s right or title in or to, or the validity of any registrations of, the Trade Marks or any other Intellectual Property Rights of Wirex; or
(d) You (or any of Your Affiliates, Subcontractors and/or their respective Personnel) makes any statement or takes part in any activities or provides the Services (including the Deliverables) in any manner, or includes anything in the Deliverables, which is, or is likely to be, derogatory or otherwise detrimental to the reputation, image, value or goodwill of Wirex, any of its Affiliates, any Personnel of Wirex or its Affiliates and/or any Intellectual Property Rights of Wirex or its Affiliates (including those Intellectual Property Rights assigned to Wirex under these Terms).
24. CONSEQUENCES OF TERMINATION
24.1 On expiry or termination of these Terms:
(a) You shall immediately cease all further performance of the Services;
(b) You shall immediately cease all further use of the Trade Marks, the Deliverables, Wirex’s Property and any other Intellectual Property Rights of Wirex or its Affiliates;
(c) You shall immediately cease holding itself out as continuing to supply the Services to Wirex;
(d) You shall be entitled to invoice Wirex for all outstanding properly incurred Fees, Third-Party Fees and Expenses, which shall be payable by Wirex in accordance with the provisions of Clause 10. For the avoidance of doubt, Wirex shall have no obligation to make any payment to You for services rendered after termination or expiry;
(e) Wirex shall pay to You any sums payable by You to any third party under any legally binding commitment relating to the provision of the Services that was entered into by You, before the date of expiry or termination, with Wirex’s consent, to the extent that You 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 Wirex under these Terms). The provisions of this Clause 24.1(e) shall not apply if Wirex terminates these Terms under:
(i) Clause 8.2;
(ii) Clause 23.1; or
(iii) Clause 23.2,
or if You terminates these Terms on notice under Clause 3.
(f) each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(g) each party shall erase all the other party’s Confidential Information from its computer systems (to the extent possible);
(h) each party shall certify in writing to the other party that it has complied with the requirements of Clause 24.1(f) and Clause 24.1(g), provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of Clause 15 shall continue to apply to any such documents and materials retained by a recipient party.
(i) You shall deliver to Wirex (or any third party specified by Wirex), promptly, in accordance with Wirex’s instructions, all Deliverables and all of Wirex’s Property, in Your possession or control at the date of termination or expiry and shall certify in writing to Wirex that You have done so;
(j) You shall execute any documents which Wirex reasonably requests in order to formalise the end of the relationship between Wirex and You (including releases, disclaimers and assignments) and shall effect the assignment of all Intellectual Property Rights in the Deliverables to Wirex pursuant to Clause 13;
(k) You shall co-operate with, and provide all assistance to, Wirex and any third party nominated by Wirex, as Wirex may request to enable an orderly and efficient transfer of the performance of the Services (or part of them) to Wirex or a third party (as applicable) without interruption or adverse effect. Wirex shall reimburse You with the reasonable costs actually incurred by You in providing that assistance except where the agreement is terminated by Wirex under Clause 8.2, Clause 23.1 or Clause 23.2 or by You under Clause 3, in which case You shall bear the costs of providing that assistance; and
(l) You shall fully indemnify Wirex and its Affiliates, and shall keep each of them indemnified, from and against all claims and losses suffered in connection with any employee or agent of You or any former employee or agent of You making any claim against Wirex and its Affiliates directly or indirectly in connection with the termination of these Terms.
24.2 Termination or expiry of these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
24.3 On termination or expiry of these Terms, the following clauses shall continue in force: Clause 1.1 to Clause 1.10 (inclusive), Clause 11, Clause 12, Clause 13, Clause 14, Clause 15, Clause 19, Clause 20, Clause 24, Clause 28, Clause 29 and Clause 31 to Clause 43 inclusive.
25. ACTING FOR COMPETITORS
25.1 You shall not, for the period set out in Clause 25.2, either alone or jointly with another or others, directly or indirectly, provide, in the Territory, to any third party, in respect of any product or services which compete with the Services for which You are providing Services, or have done so within the previous nine months, services which are the same as or similar to the Services so provided by You.
25.2 The restrictions set out in Clause 25.1 shall apply:
(a) during the Term; and
(b) for a period of six months after termination or expiry of these Terms.
26. FORCE MAJEURE
Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms 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. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate these Terms by giving 7 days’ written notice to the affected party.
27.1 Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number.
27.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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.
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
27.3 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.
27.4 A notice given under these Terms is not valid if sent by email.
28.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.
28.2 If one party gives notice to the other of the possibility that any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
30. ENTIRE AGREEMENT
30.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
30.2 Each party acknowledges that in entering into these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.
30.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
30.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
32. NO PARTNERSHIP OR AGENCY
32.1 Nothing in these Terms 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.
32.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
33. ASSIGNMENT AND OTHER DEALINGS
33.1 You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Terms without the prior written consent of Wirex.
33.2 If You assign or subcontract any of Your obligations under these Terms to any third party, You shall be fully responsible to Wirex for the proper performance of those obligations and for any act or omission of the third party in relation thereto.
33.3 Wirex may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these Terms provided that it gives prior written notice of such dealing to You.
33.4 Notwithstanding Clause 15, a party assigning any or all of its rights under these Terms may disclose to a proposed assignee any information in its possession that relates to these Terms or its subject matter, the negotiations relating to it and the other party which it is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 33.4 shall be made until notice of the identity of the proposed assignee has been given to the other party.
No party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) except that:
(a) You may publicise the fact that You work as a contracted agency for Wirex, provided always that You first obtain the written approval of Wirex to any written materials containing that publicity or to the contents of any oral publicity statements; and
(b) either party may make an announcement which is required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction, always provided that the party required to make the announcement shall promptly notify the other party. The party concerned shall make all reasonable attempts to agree the contents of the announcement before making it.
35. FURTHER ASSURANCE
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Terms.
36.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
36.2 Transmission of the executed signature page of a counterpart of these Terms by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of these Terms. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
37. THIRD-PARTY RIGHTS
37.1 A person who is not a party to these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, except that Wirex’s Affiliates may enforce any indemnity given by You under these Terms.
37.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under these Terms are not subject to the consent of any other person.
38. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated in the relevant Service Order.
The template service agreement can be found here or email email@example.com for a downloadable PDF version.