We are Independent Life UK Limited, with registered office Unit 1, 30-38 Dock Street, Leeds, England, LS10 1JF, and Company Number 10825146 (Independent Life).
The agreement between us comprises:
(b) The Key Contract Details attached to these terms and or sent to the Company by email.
If there is any conflict or ambiguity between them, a term contained in the Key Contract Details shall have priority over one contained in the Agreed Terms.
For the purposes of this agreement, a reference to writing or written includes email.
The Definitions within the Key Contract Details apply to these Agreed Terms.
1.1 This agreement shall commence on the Effective Date and shall continue (unless terminated earlier in accordance with its terms) until expiry of the Live Period (Term), when it shall terminate automatically without notice.
2. Independent Life’s obligations
2.1 Independent Life agrees to:
(a) Perform the Services in a competent manner and to the best of their skill and ability and promptly comply with all the Company’s reasonable instructions in connection with this agreement.
(b) Not make any derogatory statement relating to the Company or the Brand in public, online (including on the Media and any other social media), to the press or elsewhere.
(c) Create the Deliverables and perform any other Services in accordance with the relevant Media platform’s terms of use, the law, the CAP and BCAP advertising codes, the Competition and Markets Authority’s guidance on social media endorsements and all other applicable regulatory guidance, as updated from time to time. Without limiting the foregoing, Independent Life shall use an appropriate disclosure (such as #ad) in the Deliverables in a way that is clear and comprehensible before the consumer engages with the content.
(d) At the request of the Company remove posts of the Deliverables and any posts which are derogatory of the Company or the Brand over which it has control both from the Media and any other media as soon as practicably possible.
3.1 In consideration for provision of the Services, the Company will pay to Independent Life the Fee which is exclusive of UK VAT, if applicable.
3.2 Independent Life shall submit invoices for the Fees plus UK VAT if applicable, to the Company at the intervals specified in the Key Contract Details. The Company shall pay each invoice due and submitted to it within 14 days of receipt.
3.3 In the event of late payment of any invoice the Company agrees that:
(a) The total amount of the Fee due for the Campaign that would otherwise be invoiced monthly plus UK VAT if applicable shall become immediately payable to Independent Life; and
(b) Independent Life shall be entitled to an additional 10% of the Fee plus UK VAT if applicable and a further 10% for every 28 days that any invoice remains unpaid in whole or in part.
4. Intellectual property rights
4.1 The Company agrees that all intellectual property rights in:
(a) all materials created by Independent Life in providing the Services (including without limitation the Deliverables and any other photographs, audio-visual content, artwork, graphics, designs, performance and any other material protected by intellectual property rights) (Independent Life Materials); and
(b) Independent Life’s pre-existing trade marks, service marks, logos, other materials connected with Independent Life’s brand, names, biography, signature, and images (Independent Life Assets),
shall vest in and remain the sole property of Independent Life at all times.
4.2 Independent Life grants the Company, for the Term, a non-exclusive worldwide licence to use, and to authorise others to use, Independent Life Materials and Independent Life Assets for the purpose of providing the Services to the Company including by using and promoting the Deliverables on the Company’s own websites, social media pages and other marketing and publicity material in any medium in connection with the Campaign subject to the Media Promotion Limitations. Independent Life acknowledges that the Company is not responsible for third parties’ use of Independent Life Materials and Independent Life Assets or for their removal from media outside its control after the expiry of the Term.
4.3 The Company may provide materials to Independent Life in connection with the Services (Company Materials). The Company grants Independent Life, for the Term, a non-exclusive worldwide licence to use the Company Materials solely for the purpose of creating the Deliverables and performing the Services. Other than under this licence and clause 4.6, Independent Life shall not acquire any right in or title to the Company Materials.
4.4 Any goodwill derived from the use of the Company Materials by Independent Life shall accrue to the Company. The Company may, at any time, call for a document confirming the assignment of that goodwill and Independent Life shall immediately execute it.
4.5 If either party wishes to include in the Deliverables materials protected by intellectual property rights owned or controlled by third parties (Third-Party Content) it shall:
(a) Identify such Third-Party Content to the other party and, in the case of Independent Life, not include such Third-Party Content without the Company’s prior written consent (save where it is so minor or incidental as not to infringe third-party rights).
(b) Unless otherwise agreed by the other party on a case-by-case basis, secure any licences, consents and waivers required for the use of such Third-Party Content by both parties as envisaged in this agreement, including without limitation its incorporation in the Deliverables as posted on the Media and provide evidence of its having done so on reasonable notice and request. Where such rights have been obtained, each party shall comply with any restrictions or conditions on the use of Third-Party Content notified to it by the party responsible for securing rights in it.
4.6 Each party may during and after the Term use any Deliverables approved by the Company for posting on the Media for: its own internal archiving purposes; industry awards; (in the case of the Company) for training, investor communications and other internal and not primary advertising purposes; and (in the case of Independent Life) to promote its Services to other potential clients.
4.7 Independent Life recognises that the Company has the unlimited right to edit, copy, alter, add to, take from, adapt and translate the Deliverables and dub them into one or more foreign languages and Independent Life irrevocably and unconditionally waives the benefit of their moral rights arising under Parts I and II of the CDPA and performer’s non-property rights arising under Part II of the CDPA and any similar laws of any jurisdiction in favour of the Company and all its licensees, sublicensees, assignees and successors in title of or to the rights in the Deliverables.
4.8 Independent Life shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by Company or by a third party on the Company’s behalf, nor for any fault, error, destruction or other degradation in the quality of the Deliverables which arises due to the acts or omissions of the Company.
4.9 The terms of this clause 4 shall survive termination of this agreement for any reason.
5.1 The Company warrants, represents and undertakes that:
(a) It has full power and authority to enter into this agreement and that by doing so it will not be in breach of any obligation to or right of any third party.
(b) The Company Materials will not, when used in accordance with this agreement, infringe the intellectual property rights or other rights of any third party.
(c) It has, and shall maintain throughout the Term, product and public liability insurance against losses arising from any claims, actions or damages which may arise as a direct or indirect result of any use of the Company’s products or services related to the Deliverables and Services by Independent Life. The Company agrees to provide Independent Life with a copy of the policy on request.
(d) The Company Materials will comply with the relevant Media platform’s terms of use, the law and the CAP and BCAP advertising codes and all applicable regulatory guidance, as updated from time to time and be accurate, truthful and complete in all material respects.
5.2 The Company shall indemnify Independent Life 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 and all other professional costs and expenses) suffered or incurred by Independent Life arising out of or in connection with any third-party claims or any action, adjudication or decision taken against Independent Life by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach of clause 5.1.
5.3 Independent Life warrants, represents and undertakes that:
(a) They have the legal capacity and are free contractually to enter into and to perform this agreement and have not entered and will not enter into any professional, legal or other commitment which would or might conflict with or prevent their doing so.
(b) To the best of their knowledge and belief, Independent Life Assets and Independent Life Materials (excluding the Company Materials) are wholly original and their use in accordance with this agreement will not infringe the intellectual property rights of any third party.
(c) To the best of their knowledge and belief, Independent Life Assets and Independent Life Materials (excluding the Company Materials) will not contain any defamatory matter, breach any contract, law or duty of confidentiality, infringe data protection rights or constitute contempt of court or obscenity.
(d) To the best of their knowledge and belief, Independent Life Assets and Independent Life Materials (excluding the Company Materials) will comply with the relevant Media platform’s terms of use, the law, the CAP and BCAP advertising codes, the Competition and Markets Authority’s guidance on social media endorsements and all other applicable regulatory guidance, as updated from time to time.
6.1 References to liability in this clause 6 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
6.2 Nothing in this agreement shall limit any liability:
(a) which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation; or
(b) for either party’s deliberate default.
6.3 Subject to 6.2 (uncapped liabilities):
(a) each party’s total liability to the other shall not exceed the total amount of the Fee due under the agreement;
(b) neither party shall have any liability to the other for:
(i) loss of profits or income;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; or
(vii) indirect or consequential loss; and
(c) the Company shall have no liability for loss of publicity or loss of opportunity to enhance Independent Life’s reputation.
7.1 Without affecting any other right or remedy available to it, either party to the agreement may terminate it with immediate effect by giving written notice to the other party if:
(a) The other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
(b) The other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 7.1(b).
(c) The other party suspends or ceases, or threatens to suspend or cease, carrying on business.
(d) The other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
7.2 On termination or expiry of this agreement for any reason:
(a) Without prejudice to its rights of set-off, the Company shall, subject to receipt of appropriate invoices, pay Independent Life sums due under this agreement up to the date of termination.
(b) Independent Life shall, if requested by the Company, remove any and all posts of the Deliverables from the Media as soon as practicably possible.
(c) Each Party shall promptly deliver to the other Party (or dispose of as directed by it) all materials and property belonging or relating to the other Party and all copies of the same, to the extent that such materials are in the relevant Party’s possession or control and it is practicable to do so.
8. Confidentiality and data protection
8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 8.2.
8.2 Each party may disclose the other party’s confidential information:
(a) To its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8.
(b) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
8.4 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.
9.2 Assignment and other dealings
Neither Party shall assign, novate, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
(a) This agreement constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
(a) If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
(b) If any provision or part-provision of this agreement is deemed deleted under clause 9.6(a), the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at the address specified in the Key Contract Details or such other address as that party may have specified to the other party in writing in accordance with this clause.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 10am on the second Business Day after posting ; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) 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.
(d) For the purposes of this clause, a Business Day shall mean a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. Business Hours shall mean the period from 9.00 am to 5.00 pm on any Business Day.
(a) Unless it expressly states otherwise, this agreement does not give rise to any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
(b) The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
This agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, 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 (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
