This document sets out the sale terms (“Terms”) upon which Guerillascope Limited, registered in England and Wales under No. 04143912, whose registered office is at 19 Staveley Gardens Chiswick London W4 2SA (“Guerillascope”, “we”, “our” or “us”), agrees to make available to you, whether you are acting in your personal capacity or on behalf of your organisation or other principal, (“Client”, “you” or “your”) our Services (defined below) purchased by you from us when placing the Order (as defined below) on our Pick’N’Mix TV website (the “Site”). These Terms together with the Order shall constitute the agreement between Guerillascope and Client (the “Agreement”). If you are acting on behalf of a third party, you represent and warrant that you have authority to enter into this Agreement on behalf of such third party, and by entering into this Agreement, such third party will be bound by this Agreement from the Effective Date (as defined below). Your attention is drawn in particular to clauses 4, 5.9, 6, 7, 10, 11 and 12.2.
1. Definitions and interpretation
1.1. All capitalised words used in the Agreement shall have the meaning set out in this clause or as defined elsewhere in the Agreement.
“Advertising” means all the Client’s advertising for which Guerillascope performs media buying and planning activity for the Client under this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party from time to time during the Term.
“Confidential Information” means information disclosed by, or on behalf of, one party or its Affiliate to the other party, its Affiliate, or their officers, employees, agents and subcontractors in connection with or in anticipation of this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It will include, without limitation, information about either party’s business, business plans, invoicing details, fees prices and rate cards, commission plans, Guerillascope’s media pricing plans, customers or associated companies, campaign performance reports, marketing materials provided exclusively by Guerillascope to the Client, airtime booking details, or studies or surveys commissioned and paid for by the Client. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
“Effective Date” means the date of Order Confirmation in accordance with clause 2.5.
“Fees” means the price of each of the requested Services as set out in the Order, and shall be inclusive of all costs associated with provision of the Services such as commission, time charges, out of pocket expense and retainers. Unless expressly stated otherwise, all amounts are exclusive of VAT and similar taxes and levies, which will be charged in addition.
“IPR” means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
“Order” means the Client’s order to purchase Services placed on our Site and subsequently confirmed by us in accordance with clause 2.5, including, if applicable, the Fee, Specifications, estimated delivery time and other information.
“Report” means any material provided by Guerillascope to the Client as part of the Services to assist the Client with the formulation and submission of marketing and media plans and subsequent implementation, media schedules, evaluation of Advertising media, analysis of the relevance of new media (e.g. the worldwide web), detailed post-Advertising campaign strategy and analysis, competitor analysis, market research.
“Services” means the services Guerillascope will perform for the Client, as set out in the Order.
“Specifications” means the specifications and scope relating to each of the Services as set out in the Order.
“Territory” means the United Kingdom and such other countries where the parties agree that the Services are to be performed.
“Term” has the meaning clause 11.
“Working Day” means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business.
“Year” means a period of twelve consecutive months during the Term beginning with the Effective Date and its anniversaries.
1.2. In this Agreement, unless the context otherwise requires:
(a) words importing the singular meaning, where the context so admits, include the plural and vice versa;
(b) a reference to a particular law is a reference to such law as it is in force for the time being, taking into account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it; and
(c) the clause and paragraph headings are included for ease of reference only and shall not affect the construction or interpretation of the clause or paragraph to which they refer.
1.3. These Terms and the Agreement are only made in the English Language.
2. Placing an Order and its acceptance
2.1. These Terms apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with the Agreement. Nothing in these Terms
2.2. The Client shall follow the onscreen prompts to place an Order. You may only submit an Order using the method set out on the Site. Each Order is an offer by you to buy the Services, subject to these Terms.
2.3. Our Order process allows you to check and amend any errors before submitting your Order to us. Please check the Order carefully before confirming it. You are responsible for ensuring that your Order and any Specifications submitted by you is complete and accurate.
2.4. After you place your order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 2.5.
2.5. The Order shall only be deemed accepted, and the Agreement comes into existence, when Guerillascope sends an email to you confirming acceptance of the Order (“Order Confirmation”), at which point and on which date the Agreement between you and us will come into existence. The Agreement will relate only to those Services confirmed in the Order Confirmation. Subject to its discretion, Guerillascope will generally issue acceptance within 5 Working Days of the Order date.
2.6. We have the right to reject your Order for any reason, including without limitation compliance or legal reasons. If you have already paid for your Order, we will refund you the full amount.
2.7. During the Term, the Client will not use another outside agency to provide any services the same as the Services provided by Guerillascope under the Agreement, nor shall the Client deal directly with any media owner in respect of the Services without Guerillascope’s prior written consent.
3. Supply of Services
3.1. Any samples, drawings, descriptive matter or advertising produced by Guerillascope and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Services referred to in them. They shall not form part of the Agreement nor have any contractual force.
3.2. Subject to our right to amend the Specification (see clause 3.3) we will supply the Services to you in accordance with the specification for the Services as discussed at the date of your Order in all material aspects.
3.3. We reserve the right to amend the Specification of the Services if required by any applicable statutory, or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services, and we will notify you in advance of any such event.
3.4. Guerillascope warrants that it will use reasonable care and skill in providing the Services and in the selection and appointment of media suppliers and the agreement or the terms and conditions of business applicable to such an appointment.
3.5. Where the Specifications are discussed over the telephone, Guerillascope will confirm the Order in writing setting out the agreed Specifications.
3.6. Subject to clause 10.2(a), Guerillascope and its Affiliates shall not be responsible for:
(a) the preparation, content, production or supply of copy for any of the Client’s Advertising;
(b) any act or omission of any third party, including but not limited to circumstances in which we have reasonably relied on information provided or published by a third party which subsequently turns out to be inaccurate; or
(c) any statement of opinion, expectation or forecast provided as part of any Report we may provide you under the Services and the same must not be relied on as a promise, warranty or representation.
3.7. Nothing in a report shall be construed as, or deemed to be, legal advice.
4. Your Obligations
4.1. It is the Client’s responsibility to ensure that:
(a) the terms of the Order are complete and accurate;
(b) you co-operate with us in all matters relating to the Services;
(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) you obtain and maintain all necessary licences, permissions and consents, including but not limited to Clearcast approvals, which may be required for the Services before the date on which the Services are to start; and
(e) you comply with all applicable laws, including advertising regulations and standards as from time to time in force.
4.2. If our ability to perform the Services is delayed by any failure by you to fulfil any obligation listed in clause 4.1 (“Your Default”):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us of the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle Guerillascope to terminate the contract pursuant to clause 11;
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5.1. In consideration of us providing the Services you must pay our Fees in accordance with this clause 5.
5.2. The Fees are the prices quoted on our site at the time you submit your Order.
5.3. If you wish to change the scope of the Services after we accept your Order, and we agree to such a change, we will modify the Charges accordingly.
5.4. We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system. However, please see clause 5.6 for what happens if we discover an error in the price of the Services you have ordered.
5.5. Our Charges may change from time to time, but changes will not affect any order you have already placed.
5.6. It is always possible that, despite our reasonable efforts, some of the Services on our site may be incorrectly priced. Where the correct price for the Services is less than the price stated on our site, we will charge the lower amount and if the correct price for the Services is higher than the price stated on our site, we will contact you in writing by email as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your Order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing by email. However, if we mistakenly accept and process your Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.
5.7. Payment for the Services is in advance upon checkout. We will take your payment upon acceptance of your Order.
5.8. You can pay for the Services using a debit card or credit card. We accept the following cards:
a) Visa Credit and Debit
5.9. We will send you an electronic invoice within 7 days of the beginning of the month following payment. For any failed or cancelled payments, a £20 administration fee will be levied.
5.10. Any queries or disputes in relation to electronic invoices must be notified to us in writing within 7 days from the electronic invoice date, after which time our electronic invoices will be deemed to be agreed and may not be disputed.
6. Complaints, Cancellations, amendments and other Remedies
6.1. If a problem arises or you are dissatisfied with the Services, we have a comprehensive Complaints Policy.
6.2. You may cancel the Agreement and receive a refund, if you notify us as set out in clause 6.3 within 7 days of your receipt of the Order Confirmation. You cannot cancel the Agreement once we have started providing the Services, even if the 7-day period is still running. Guerillascope will take all reasonable steps to comply with any such request provided that Guerillascope is able to do so within its contractual obligations to media suppliers.
6.3. To cancel the Agreement, you can email us at email@example.com, telephone us on 0207 833 5008, or write to us by post at Guerillascope, 72-82 Rosebery Avenue, EC1R 4RW to cancel the Agreement. If you email or write to us please include details of your Order to help us to identify it. If you send us your cancellation notice by email or by post, then your cancellation is effective from the date you send us the email or post the letter to us. For example, you will have given us notice in time so long as you get your letter into the last post on the last day of the cancellation period or email us before midnight on that day.
6.4. If you cancel the Agreement, we will refund you in full the Fees you paid for the Services, by the method you used for payment. We may deduct from any refund an amount for the supply of the Services for the period up to the time when you give notice of cancellation in accordance with clause 6.3.
7. Intellectual Property
7.1. All IPR in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by us.
7.2. Guerillascope and/or its licensors shall retain ownership and IPR (present and future) in all Reports. Guerillascope agrees to grant you a fully paid-up, non-exclusive, revocable, royalty-free and worldwide licence to copy the Reports specified in the Services (excluding materials provided by you) for the purpose of receiving and using the Services and such reports in your business. You may not sub-licence, assign or otherwise transfer the rights granted in this clause 7.2.
7.3. You grant us a fully paid-up, non-exclusive, revocable, royalty-free and worldwide licence to use your business name, brand and logo in connection with our marketing activities.
8. Data Protection
8.1. We will use any personal data you provide to us to:
(a) provide the Services;
(b) process your payment for the Services; and
(c) inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.
8.2. For further details on how we process your personal data, and the third parties we may share your data with, please see our Privacy Notice on our website.
9. Confidentiality & Custody of Material
9.1. Each party shall keep Confidential Information confidential and must not disclose Confidential Information, except to its Affiliates, officers, employees, agents or subcontractors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential.
9.2. Client must implement appropriate technical, physical and organisational security measures to safeguard the confidentiality of Confidential Information.
9.3. You may disclose Confidential Information when required by law including without limitation in response to a lawful witness summons, subpoena or similar compulsory process received from a regulatory body, governmental agency or similar body or a court of competent jurisdiction, after giving reasonable notice to us, if giving such notice is legally permissible, such notice to be sufficient to give us the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
9.4. Guerillascope will keep in its care materials entrusted to Guerillascope by the Client (“Property”). Guerillascope will mark or otherwise identify the Property as being the property of the Client and will be responsible for its safekeeping.
9.5. Guerillascope will be entitled to destroy Property without the Client’s prior written consent after giving the Client 30 days written notice that it no longer requires the Property, provided such notice shall not expire less than 12 months after the Property first came into Guerillascope’s possession or upon termination of this Agreement, whichever is earlier.
10. Liability and Indemnity
10.1. Save as expressly provided in this Agreement, the parties agree that any conditions, warranties and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
10.2. Nothing in this Agreement will exclude or limit (a) the liability of either party which cannot be limited or excluded by applicable law, and (b) your liability for any breach of clauses 7, 8, 9 and your liability under clause 10.5.
10.3. Subject to clause 10.2, neither party will be liable under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any:
(a) loss of anticipated savings, investment or expenditure;
(b) loss of business opportunity, revenue, Clients or loss of profits;
(c) loss of goodwill;
(d) loss and damage resulting from third party claims; or
(e) indirect, consequential or special losses or punitive, incidental or exemplary damages,
suffered or incurred by the other party, whether or not such losses were within the contemplation of the parties at the date of this Agreement.
10.4. Subject to clauses 10.2 and 10.3, the total liability of Guerillascope under or in connection with this Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, is limited to the total Fees paid by you under the Order.
10.5. The Client shall indemnify Guerillascope and its Affiliates and their officers, employees, agents and subcontractors (each an “Indemnified Party”) from and against any claims, losses, demands, actions, liabilities, fines, penalties, reasonable expenses, damages and settlement amounts (including reasonable legal fees and costs) incurred by any Indemnified Party arising out of or in connection with any breach of clauses 7, 8, 9, , 12.2 and 12.13.
11. Term and Termination
11.1. This Agreement will commence on the Effective Date and will continue until the Services under this Agreement are complete or one party terminates the Agreement in accordance with this clause 11, whichever is sooner (the “Term”).
11.2. Either party may terminate the Agreement by notice in writing to the other party:
(a) if the other party shall have caused a material breach of the Agreement and fails to remedy such breach within 30 days following written notice from the non-breaching party; or
(b) it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due for payment; a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law save where such resolution is made in the context of an internal solvent restructure or reorganisation of its group of Affiliates; any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; any event analogous to the events listed above takes place in respect of it in any jurisdiction.
11.3. Guerillascope may terminate the Agreement with immediate effect if the Client acts in breach of any provision in clauses 4, 5, 7, 8, 9, 10.5, 12.2 or 12.13.
11.4. Clauses 3.6, , 5.1 – 5.9, 7.3, 9, 10, and 12 of this Agreement and of any other clauses which under their terms or by implication ought to survive, will survive the expiration or termination of this Agreement.
12.1. Assignment. Subject to the remainder of this clause, neither party may assign, novate, subcontract or otherwise transfer the Agreement, in whole or in part, to any entity or person without the written consent of the other. Guerillascope may assign, novate, subcontract or otherwise transfer its rights and transfer its obligations under this Agreement to an Affiliate of Guerillascope upon written notice to the Client. Either party may upon written notice to the other party assign or novate this Agreement to a successor entity in the event of an acquisition, merger or restructuring, whether by equity or asset transfer. Any other attempt to assign, novate, subcontract or otherwise transfer the Agreement is void. Neither party may hold this Agreement on trust for any other person.
12.2. Liability for third parties. You shall ensure that each recipient of Confidential Information pursuant to clause 9.1 complies with clauses 7, 8 and 9 as if they were a party to this Agreement. You shall be responsible for each act and omission of each such party as if they were your own acts and omissions.
12.3. Severability. If any term of this Agreement, in whole or in part, is invalid, illegal or unenforceable, the rest of the Agreement will continue in force unaffected.
12.4. Force Majeure. Subject to clause 10.2(a), neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
12.5. Insurance. Without prejudice to its obligations under this Agreement, Guerillascope shall effect and maintain with reputable insurers insurance against (i) loss or damage to the Client’s property and items such as software coming into existence for the purpose of producing the Advertising while in Guerillascope’s possession and regardless of whether the ownership of such property and items has passed to the client, except the obligation ceases after publication, broadcast or distribution, and (ii) professional liability insurance.
12.6. No Waiver. Neither party will be treated as having waived any rights by not exercising, or delaying the exercise of, any rights under this Agreement.
12.7. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
12.8. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party (under the Contracts (Rights of Third Parties) Act 1999 or otherwise) unless it expressly states that it does. Except for designated Users no Report or Add-on must be used or relied on by any third party without the prior written consent of Guerillascope; such consent will not be unreasonably withheld but may be subject to applicable fees.
12.9. Entire Agreement. (i) Subject to clause 10.2, the Agreement sets out all terms agreed between the parties and supersedes all previous or contemporaneous agreements between the parties relating to its subject matter. (ii) In entering into this Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, whether made negligently or innocently, except those expressly set out in this Agreement.
12.10. Amendments. Any amendment to these Terms must be (i) in writing, (ii) state that it is amending this Agreement and (iii) agreed by a duly authorised representative on behalf of each party.
12.11. Non-solicitation. The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during the Term and for a period of 12 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of the other party who has worked on the Advertising at any time during the preceding 12 months of the Term.
12.12. Notices. Notwithstanding clause 6.3, all notices, of termination or breach or otherwise, must be in English, in writing and addressed to the other party’s primary contact person or legal department. Notice will be treated as given on receipt, as verified by a valid receipt, electronic log or other valid evidence of service.
12.13. Compliance with Anti-Bribery Laws. In performance of its obligations under this Agreement, each party will comply with all applicable commercial and public anti-bribery laws, including the Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (“Anti-Bribery Laws”), which prohibits corrupt offers of anything of value, either directly or indirectly, to a government official to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, each party will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform.
12.14. Governing Law and Jurisdiction. This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute (contractual or non-contractual) concerning this Agreement.