The Client wishes to appoint Saboteur Limited “the Agency” to provide the Services (as defined) on the terms and conditions set out below.
IT IS AGREED THAT:
1 DEFINITIONS
In this Agreement, the following words and phrases shall have the following meanings:
"Agency Materials" means any artwork, copy, models, designs, images and all other new material and Intellectual Property created by Staff of the Agency in the provision of the Services, provided that it is selected for use, and paid for, by the Client and has been incorporated into the Deliverables.
“Agreement” means the Project Documentation and these Terms and Conditions.
"Commencement Date" means the date of this Agreement or, if earlier, the date on which the Services commenced.
"Commissioned Materials" means any artwork, copy, models, designs, images, illustrations, recordings and all other material and Intellectual Property, the creation of which has been commissioned from third parties by the Agency pursuant to the provision of the Services, provided that it is selected for use, and paid for, by the Client and has been incorporated into the Deliverables.
"Confidential Information" has the meaning ascribed to it in clause 4.
"Deliverables" means all creative work and materials to be provided by the Agency to the Client pursuant to the provision of the Services as expressly identified in the Project Documentation, to the extent that the same are selected for use, and paid for, by the Client (excluding, for the avoidance of doubt, all Unselected Materials).
"Existing Materials" means any artwork, copy, models, designs, images, content, character, recordings or any other material and Intellectual Property not originally created in connection with the Services and already in existence at the time it is desired to make use of it for the purposes of the Deliverables.
"Fees" means the fees payable to the Agency in respect of the Services (exclusive of VAT if relevant) as set out in the Project Documentation.
“Freelancers” means Staff engaged by, and whose activities are under the direct control of, the Agency that are not employees of the Agency.
“Intellectual Property Rights” means any and all copyright, database rights, moral rights, rights in performances, rights in designs, trademarks, service marks, domain names, goodwill, patents, rights in confidential information and other intellectual property rights (including, where relevant, all extensions, reversions, revivals and renewals of the same), in each case whether registered or unregistered and including all applications (and rights to apply) for protection of such rights, as well as all similar or equivalent rights or forms of protection subsisting now or in the future in any jurisdiction (and Intellectual Property shall be interpreted accordingly);
“Unselected Materials” has the meaning ascribed to it in clause 5.5.
"Project" means any project commissioned by the Client and agreed to be carried out by the Agency as detailed in the Project Documentation.
"Project Documentation" means each written proposal, scope of work, project confirmation form or other document approved by both parties from time to time in writing in respect of each applicable Project, (including any initial such documents already so approved as attached at the Schedules to this Agreement) as the same may be amended from time to time in accordance with the provisions of this Agreement.
“Purchase Order” means the Client generated purchase order, or other formal document (in whatever form), that records the Client’s approval for the Agency to proceed with a Project and to issue the applicable invoice(s).
"Services" means the services to be carried out by the Agency in relation to each applicable Project as detailed in the Project Documentation.
“Staff” means the Agency staff engaged by the Agency to carry out the Services, whether such staff are engaged as employees or as Freelancers or otherwise (but excluding Sub-contractors).
“Sub-contractors” means independent third parties whose activities are not under the direct control of the Agency that are engaged by the Agency in connection with the provision of the Services (excluding, for the avoidance of doubt, all the Agency employees and Freelancers).
“Term” has the meaning ascribed to it at clause 2.
"Territory" means, in respect of each Project, the applicable territories as detailed in the relevant Project Documentation, and any other territories as agreed between the parties from to time in writing to be covered by this Agreement.
"Third Party Costs and Studio Costs" means any third party costs and expenses incurred and/or committed to by the Agency in connection with the provision of the Deliverables as further detailed in the Project Documentation or as otherwise agreed between the parties from time to time in writing.
2 APPOINTMENT AND SERVICES
2.1 This Agreement shall be deemed to have commenced on the Commencement Date and shall continue for so long as any Project is active, unless terminated sooner by either party pursuant to clause 10 and/or 12 (the “Term”).
2.2 The Client appoints the Agency to provide the Services in the Territory to the Client.
2.3 The terms and conditions set out in this Agreement shall apply in respect of any Project and Project Documentation agreed between the parties from time to time in writing. In the event of any express inconsistency between the Project Documentation and this Agreement, the terms of the Project Documentation shall prevail. All other terms are expressly excluded, including any terms and conditions of purchase of the Client.
2.4 The Agency shall be entitled to sub-contract the provision of the Services to third party Sub-contractors.
2.5 Saboteur uses advanced Artificial Intelligence (AI) tools to enhance the efficiency of our brand strategy and design services. By engaging our services, you acknowledge and agree to the use of AI tools as part of our process.
2.6 We will use reasonable skill and care in providing the services, and we carry professional indemnity, public liability and employers’ liability insurance. However, you acknowledge and accept that the nature of our services may involve reference to and reliance on information, data and other materials supplied by third parties (including generative artificial intelligence) and we cannot guarantee the accuracy or legality of, and make no warranties in respect of, those materials or their output.
3 CO-OPERATION
3.1 The parties shall co-operate with each other in order to ensure that the other is at all times kept fully informed of any matter which may materially impact on the performance of the Services. Each of the parties shall at all times promptly respond to all requests for approvals and the Client shall ensure that any third parties contracted to it fully co-operate with the Agency. In the event of any delay by the Client or its nominated third parties, the Agency shall not be liable for any corresponding delay caused and any agreed timescale for completion of a Project (or the relevant part of it) shall be extended accordingly.
4 CONFIDENTIALITY
4.1 The parties shall not during or after the Term disclose without the other's prior written permission any confidential information concerning the other's business, its business plans, know-how, customers, clients or associated companies ("Confidential Information").
4.2 For the avoidance of doubt, the restrictions in this clause 4.2 shall not prevent:
(a) the disclosure or use of Confidential Information in the proper performance of the Agency's duties;
(b) the disclosure of Confidential Information if required by law;
(c) the disclosure of Confidential Information which has come into the public domain otherwise than through unauthorised disclosure.
4.3 The Client acknowledges that nothing in this Agreement shall affect the Agency's right to use as it sees fit any general marketing or intelligence gained by the Agency in the course of its appointment.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 If the Client so requests and provided all obligations of the Client arising from this Agreement (including those relating to the payment of invoices) have been met, the Agency shall (subject to the remainder of this clause 5) assign to the Client such Intellectual Property Rights in the Agency Materials as may be owned by the Agency and which are capable of assignment. To the extent that the Client requires permission to make use of the Deliverables prior to such assignment of rights taking effect and that the Agency gives such permission in writing, the Agency hereby grants to the Client a revocable, non-exclusive licence of the right to make such use for the period of no longer than one calendar month, which licence shall be terminable immediately by the Agency in the event of any failure by the Client to make payment due under this Agreement.
5.2 The Client acknowledges that it will often not be possible for the Agency, or commercially desirable for the Client, to obtain an assignment of Intellectual Property rights in Existing Materials or Commissioned Materials and, in such circumstances, and at the Client’s agreed cost, the Agency shall use its reasonable endeavours to obtain such licence or consent as shall be necessary for the agreed usage on behalf of the Client.
5.3 The Client acknowledges that any extension of use of the Deliverables in time, forms of use, media or territory beyond that notified to the Client can be expected to incur additional third party costs, for which the Client shall be responsible. The Client will abide by any restrictions on usage and will indemnify the Agency on demand in respect of any failure by the Client or any party acting on its behalf to do so.
5.4 In relation to any Intellectual Property (in particular, brand names, logos or trademarks) created by the Agency for use by the Client, the Client agrees that the responsibility and cost of any legal searches shall be met by the Client. For the avoidance of doubt, except to the extent expressly specified otherwise in the applicable Project Documentation, the Agency is not engaged to carry out any due diligence in respect of the Deliverables other than a basic examination of the brand identity of prominent competitors in the Client’s market, for the purpose of developing for the Client a brand identity that distinguishes the Client from such competitors. Such examination will not involve research as to the potential similarity with brands in other markets and shall not include the carrying-out of trade mark searches, copyright register searches or other rights clearance searches or the provision of any advice in relation to rights clearance or infringement or other legal compliance issues. Accordingly, the Agency makes no warranty or representation (and shall have no liability) in respect of the legal clearance/compliance status of the Deliverables. Where the Agency refers the Client to third parties so that the Client may obtain clearance or compliance advice or services from those third parties, the Agency shall not be responsible (and shall have no liability) for the advice, services, acts and omissions of those third parties.
5.5 In respect of any Deliverables, brand names, slogans, logos or trademarks or any other Intellectual Property or identifiable idea or concept, which are presented to the Client and which are not selected for use, and not paid for, by the Client in accordance with this Agreement (“Unselected Materials”), the Client acknowledges and agrees that these shall remain the property of the Agency or the relevant third party and shall remain strictly confidential and shall not be used by the Client (or permitted by the Client to be used by a third party) in any way, including by way of communication to any third party, without the prior written consent of the Agency.
6 FEES
6.1 The Client shall act promptly and in good faith in relation to the issue of Purchase Orders. Where the Client has not issued a Purchase Order but has given other written confirmation that it approves the applicable Fees and the provision of the applicable Services, the Agency shall be entitled to perform such Services and invoice for such Fees in accordance with this Agreement, in the absence of a Purchase Order. For the avoidance of doubt, where the Client has confirmed that the Agency should proceed with the provision of Services, any delay or failure on the part of the Client to issue a Purchase Order in respect of such Services shall not delay the due date for payment of any applicable Fees or Third Party Costs or Studio Costs.
6.2 In consideration of the Services carried out by the Agency in relation to the Project, the Client shall pay to the Agency the Fees and all Third Party Costs and Studio Costs incurred and/or committed to by the Agency on behalf of the Client.
6.3 VAT (and any other applicable or alternative tax including (without limitation) withholding taxes) will be payable in addition to the Fees and Third Party Costs and Studio Costs and included as a separate item on the invoices of the Agency.
7 VARIATION
7.1 Any estimates of Fees are based on information provided to the Agency by the Client at the time the Fees were estimated. In the event that any incorrect or incomplete information is given, the Agency may increase or decrease the Fees (by written notice to the Client setting out the reasons for such increase or decrease) in order to make such reasonable adjustment to the Fees as is necessary to take account of such incorrect or incomplete information.
7.2 If either party wishes to change the Project, the Deliverables, or any other matter set out in the Project Documentation, it shall submit to the other party in writing details of the requested change.
7.3 In the event that a party requests such change, the other party shall have a reasonable time to consider such a request and its likely impact. The Agency shall confirm in writing to the Client the anticipated effect of the change on the Project and the Fees (and any Third Party Costs and Studio Costs) and, where possible, how such change could be carried out, such document being referred to in this Agreement as the “Change Proposal”. The Client shall respond to the Agency on the Change Proposal within the requested timeframe specified in the Change Proposal, or otherwise as soon as reasonably practicable. If accepted by the parties’ representatives as stated in clause 13.2 below, the Change Proposal shall be deemed to have amended the Project Documentation and this Agreement accordingly. If rejected, the Project Documentation and this Agreement shall continue as before.
7.4 During the continuation of the procedure outlined in clause 7.3, any obligations of the Agency in respect of the Project which may be affected by the matters to be addressed in the Change Proposal shall be suspended until completion of this procedure. Any previously agreed timescales for delivery or completion of the Project (or the applicable part(s) of it) shall be extended accordingly.
7.5 The Client shall be responsible for any additional Fees and/or any other Third Party Costs and Studio Costs in the event of any additional work arising following approval of a Change Proposal in accordance with the procedure set out in clause 7.3.
8 PAYMENT TERMS
8.1 All invoices will be issued in the currency stated in the Project Documentation. Unless otherwise agreed by the Agency in the Project Documentation, invoices will be issued monthly in arrears for all Services provided during that month. Third Party Costs and Studio Costs incurred or payable by the Agency will be added to the monthly invoices. Third Party Costs and Studio Costs may also be invoiced to the Client separately at any other time.
8.2 The Client shall pay each invoice within 30 days of the date of the invoice. The Agency shall be entitled to charge interest on a daily basis on any overdue amount at the rate of 3% per annum above the base-lending rate of HSBC Bank plc from time to time in force from the date of invoice until the outstanding balance is paid. In the event of overdue payment, the Agency may suspend the Services and/or Project until payment has been received and any timetable agreed for the performance of the Project (or the applicable part(s) of it) shall be extended accordingly.
9 LIABILITY AND IDEMNITY
9.1 Unless specifically agreed by the Agency in writing on each and every occasion, any indications as to the time of delivery or completion of the Project or any Deliverables are estimates given for guidance purposes only. The Agency shall not be liable for any loss or damage whatsoever resulting from any delays in or failure to fulfil its obligations which are caused either directly or indirectly by the Client or its nominated third parties or by any reason outside of the control of the Agency.
9.2 Subject to clause 9.5, whilst the Agency will take reasonable precautions to safeguard items of the Client's property entrusted to the Agency's care, in the absence of negligence on the part of the Agency, the Agency will not be responsible for loss, damage, destruction or unauthorised use of such property.
9.3 Subject to clause 9.5, neither party shall be liable to the other for any:
(a) indirect, consequential or economic loss;
(b) loss of profit;
(c) loss of revenue;
(d) loss of or damage to goodwill;
(e) loss of earnings;
(f) loss of data; or
(g) loss of anticipated savings, arising out of the performance of the Services or otherwise in connection with this Agreement.
9.4 Subject to clause 9.5, in respect of all potential claims, collectively, the maximum aggregate liability of the Agency to the Client under or in connection with this Agreement, howsoever arising (whether in contract, tort or otherwise), shall be limited (to the extent permitted by the law) to the lesser of (i) £500,000; or (ii) the amount of Fees received by the Agency in the 12-month period prior to the applicable claim arising.
9.5 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from its negligence or for fraud or fraudulent misrepresentation.
9.6 The Client will indemnify the Agency on demand in respect of any loss, damage, costs or expenses suffered by the Agency or any claims or proceedings of any nature and related costs (including legal costs) arising out of any use by the Agency of material or information supplied by or on behalf of or approved by the Client or arising as a result of the Client’s products or services being defective.
10 TERMINATION
10.1 Either party may terminate this Agreement without cause at any time, by giving not less than two months’ written notice to the other.
10.2 Either party may terminate this Agreement with immediate effect, by notice in writing if the other party:
(a) commits a material breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 14 days of such other party being served written notice identifying the breach and requiring its remedy; or
(b)passes a resolution for winding-up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any or all of its assets or ceases, or threatens to cease to carry on business or is unable to pay its debts or if any analogous or similar event occurs in consequence of debt (in any jurisdiction).
10.3 Following the termination or expiry of this Agreement, the Client will be responsible for all Fees, and all Third Party Costs and Studio Costs incurred and/or committed to by the Agency on behalf of the Client, up to the date of such termination (including any applicable notice period).
11 NON-SOLICITATION OF EMPLOYEES
11.1 Each of the Client and the Agency covenants with the other that it shall not either on its own account or for any other person, firm or company directly or indirectly solicit, interfere with or endeavour to entice away from the other, any director, employee, consultant or sub-contractor of the other (whether or not such person would be in breach of his contract of employment or engagement by reason of leaving the service of the other) nor shall it knowingly employ, aid or assist in or procure the employment by any other person, firm or company of such person during the Project and for a period of 12 months thereafter.
12 FORCE MAJEURE
12.1 If, due to war, strikes, industrial action short of a strike, import or export embargo, lockouts, accidents, fire, blockade, terrorism or threats of terrorist activity, import or export embargo, flood, natural catastrophes, technical malfunctions or other obstacles, events or circumstances over which a party has no control (“force majeure”), that party fails to perform any of its obligations under this Agreement (other than in respect of any payment and indemnity obligations), that party shall not be held responsible for any loss or damage which may be incurred as a result of such failure and, in particular, the Agency shall not be responsible for any increased costs or loss suffered by or incurred on behalf of the Client as a consequence. Should the event of force majeure continue for longer than two months, the party adversely affected shall have the option of terminating this Agreement immediately without further liability other than such liabilities as have already accrued as at the date of such termination.
13 GENERAL
13.1 This Agreement shall not be varied, amended or supplemented except in writing signed by the duly authorised representatives of both parties, which shall include the parties’ directors.
13.2 The Project Documentation may be amended by the parties from time to time in accordance with clause 7.
13.3 This Agreement shall not be assigned by either party (other than to an acquirer of all or substantially all of either party’s business or assets) without the prior written consent of the other party and shall be binding upon the parties and their respective successors and permitted assignees.
13.4 In the case of the Agency, all notices shall be addressed for the attention of the Chief Executive Officer. Any notice to be given under this Agreement shall be in writing and sent to the other party's last known address by hand or recorded delivery (first class post). Any such notice shall be deemed to have been served two working days following the date on which it was posted, or if delivered by hand, shall be deemed to have been served on delivery.
13.5 This Agreement and any documents expressly referred to in the same, together set out the sole and complete agreement between the Agency and the Client in respect of the subject matter thereof and supersede all prior agreements or understanding between the two parties in respect of the same.
13.6 The parties agree that this Agreement shall apply in respect of any arrangement between, on the one hand, the Agency or any other Agency entity or office (each of which shall be deemed an Affiliate of the Agency) and, on the other hand, the Client or any entity or office of the Client and any company within the Client’s corporate group (each of which shall be deemed an Affiliate of Client). Each of the parties agrees that the Affiliates of the other party are intended to benefit from and shall be able to enforce the provisions of this Agreement. Each of the parties agrees that it has the authority to bind its own Affiliates by entering into this Agreement and that it will procure its Affiliates’ compliance with the provisions of this Agreement. Subject to the foregoing, it is expressly agreed that no third party shall be entitled to enforce or rely upon the provisions of this agreement, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise and, for the avoidance of doubt, in no event shall the terms of this Agreement contain any benefit for any third party.
13.7 Nothing in this Agreement is intended to nor shall create any partnership, joint venture or relationship of employment between the parties and, for the avoidance of doubt, the Agency and its Staff are independent of the Client and this agreement sets out the terms on which the Agency is commissioned to provide the Services, using its Staff.
13.8 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
13.9 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law will prevent or restrict the further exercise of that or any other right or remedy.
13.10 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this Agreement.
13.11 The parties shall comply with all applicable legislation, statutes and regulations in connection with their obligations under this Agreement including but not limited to the Data Protection Act 2018. For the purposes of this Clause 13.11, the following definitions and rules of interpretation apply:
(a) the terms ‘Controller, ‘Processor’, ‘Personal Data’ and ‘Process’ shall have the meaning given to them in the Data Protection Legislation;
(b) Data Protection Legislation (I) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; (ii) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
(c) When either Agency or Client act as Data Controllers as necessary for the performance of services under the Agreement, then both parties shall fulfil their obligations & responsibilities when processing personal data under the Data Protection Legislation.
(d) When the Agency is acting as a Data Processor on behalf of Client, then the terms of the Saboteur Data Processing Agreement shall apply.
14 DISPUTE RESOLUTION
14.1 In the event of any dispute arising out of or in relation to this Agreement or the breach, termination, validity or subject matter of it, the parties agree first to use their respective best endeavours in good faith to settle the dispute by negotiation within 14 days.
15 GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with English law. Subject to clause 14, any claim, dispute or difference which may arise out of or in connection with this Agreement or the breach, termination, validity or subject matter of it shall be subject to the exclusive jurisdiction of the English Courts, save in respect of the enforcement of any debt or judgment, where such jurisdiction shall be non-exclusive.