The following terms and conditions refer to OKHO (“The Agency”) and its relationship with its clients and potential clients when we are contacted to commence work.
1.1 The Client appoints the Agency to carry out and the Agency agrees to provide the Services in accordance with the terms of this Agreement.
2.1 On receipt of a request for Services from the Client, the Agency shall prepare a Proposal, based on information provided by the Client and deliver the same to the Client for approval.
2.2 The Client shall be entitled to request amendments by notifying the Agency of the proposed amendments – up to three ‘reasonable’ amendments are incorporated within the Proposal quote.
2.3 Proposals shall be valid for a period of 3 months from the date issued by the Agency, excluding any third party costs. On expiry of 3 months from the date of the Proposal, it may be necessary for the Agency to prepare a revised Proposal.
2.4 Unless otherwise specified in a Proposal, the Charges shall be charged for on a time and materials basis based on the Agency’s current rates in place from time to time.
2.5 The Agency shall not commence the Services until the Client has given its written acceptance of the Proposal with a purchase order number.
2.6 New Clients shall be invoiced 50% on instruction, prior to work commencing on the Proposal and 50% monthly in arrears.
This Agreement shall take effect from the date on which it is signed and shall continue in force unless and until terminated by either party in accordance with clause 10.
4 Additional Services
4.1 Any requests from the Client for changes or additions to the Services or for services which are outside of an agreed Proposal shall be subject to the written agreement of the parties and the Client acknowledges that the Agency should be entitled to charge for such services at its then current rates.
4.2 Any dates and times for performance of the Services by the Agency set out in a Proposal or in any other document or discussion between the parties are estimates only and time shall not be of the essence in respect of these and the Agency shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in performance of the Services.
5.1 All Charges shall be:
5.1.1 exclusive of Value Added Tax and any similar taxes and all such taxes are payable by the Client in addition to the Charges;
5.1.2 inclusive of any additional third party costs;
5.1.3 invoiced in sterling unless agreed otherwise in a Proposal.
5.2 The Client shall pay all amounts due under this Agreement in full without any set-off, abatement, cross claim, deduction or withholding of any kind other than as required by law.
5.3 The Client shall pay each invoice issued by the Agency in full no later than 30 Business Days after the date of the Agency’s invoice.
5.4 If the Client fails to make any payment to the Agency when due then without affecting any other rights which the Agency may have the Agency shall be entitled to exercise all or any of the following rights:
5.4.1 to suspend performance of Services until paid and ultimately to terminate this Agreement in its entirety;
5.4.2 to be paid compensation and charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended);
5.5 If the Agency becomes entitled to terminate this Agreement for any reason, any sums then due to it will immediately become payable in full.
6 Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Works including, without limitation, any modifications, changes or additions to the Services or the Works will at all times and for all purposes vest and remain vested in the Agency.
6.2 Subject to compliance by the Client with the terms of this Agreement and payment by the Client of all sums due under the Agreement, the Agency permits the Client to use the Works in its usual business for the purposes originally intended.
7 Limitation of Remedies and Liability
7.1 Subject to clause 8.5, the Agency’s liability in any Year for any claims arising out of or in connection with this Agreement, the Services and/or the Works, however arising shall be limited in respect of all claims in aggregate to a sum equal to the Charges paid by the Client for that Proposal.
8.1 Neither party shall without the prior written consent of the other party (during and after termination of this Agreement) use (other than in the performance of this Agreement) or disclose to any other person any Confidential Information of the other party, except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required by law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a party’s professional advisors, acting in their capacity as such.
8.2 The Agency shall be entitled to disclose the Client’s Confidential Information to those of its employees, contractors, and suppliers who require such information in order that the Agency can carry out its obligations under this Agreement provided that the Agency shall impose obligations in terms equivalent to those in sub-clause 8 on its own personnel.
8.3 The Client acknowledges that nothing in this Agreement shall affect the Agency’s right to use as it sees fit any general marketing or advertising intelligence gained by the Agency in the course of its appointment which does not identify and is not specific to the Client.
9 Termination of the Agreement
9.1 Either party may terminate this Agreement forthwith by notice in writing to the other provided that there are no current and valid Proposals in force by giving the other party not less than three months notice of termination.
9.2 In addition, the Agency shall be entitled to terminate this Agreement immediately at any time by written notice to the Client if the Client fails to pay any sums due to the Agency within 30 days of the sums becoming due.
10 Data Protection
10.1 In the event the Agency is required to process personal data (as defined by the Data Protection Act 1998 (“DPA”)) of the Client, its employees, customers or other persons (“Personal Data”) as part of its obligations under this Agreement, the parties agree that for the purposes of the DPA, the Client shall be the Data Controller and the Agency shall be the Data Processor.
10.2 The Agency agrees that it shall only process Personal Data to the extent, and in such a manner, as is necessary for the purposes of the Services and only act in accordance with the Client’s lawful instructions in respect of Personal Data
10.3 The Client agrees it shall obtain all necessary consents from its employees, clients and any other third parties before allowing any processing of Personal Data by the Agency as part of the Services.
11 Relationship of the Parties
11.1 Nothing in this Agreement shall be:
11.1.1 deemed to constitute a partnership, joint venture, representative or agency relationship between the parties hereto; or
11.1.2 construed or have effect as constituting any relationship of employer and employee between the parties.
11.2 Neither party shall have the authority to bind or pledge the credit of, or oblige, the other in any way without obtaining the other’s prior written consent.
12 Force Majeure
12.1 The Agency shall not be liable in any way for loss, damage or expense arising directly or indirectly from any hindrance, failure or delay in performing any obligation under this Agreement caused by the actions or omissions of the Client, its employees, agents, contractors or other third parties providing goods or services to or acquiring them from the Client or by any circumstance beyond the Agency’s reasonable control, which shall include without limitation war (or other action of military forces), terrorism, riot, civil commotion, sabotage, vandalism, accident, breakdown or damage to machinery or equipment, fire, flood, severe weather conditions, extreme traffic congestion, strike, lock-out or other industrial disputes (whether or not involving employees of the Agency) or shortage of materials at the market rates existing when the relevant Proposal is made, legislative or administrative interference or national crisis (each an “Event of Force Majeure”). If an Event of Force Majeure continues for more than a period of 30 days the Agency shall be entitled at its discretion to perform, suspend performance of, and/or terminate the Agreement.
13.1 No provision of this Agreement shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
13.2 The Agency may at any time assign, transfer, charge or deal in any other manner with any of its rights hereunder, and may sub-contract any or all of its obligations under this Agreement.
13.3 The Client shall not assign, transfer, charge, hold on trust for another or deal in any other manner with any of its rights or obligations under this Agreement, or purport to do so, or sub-contract any or all of its obligations under this Agreement without the prior written consent of the Agency in its absolute discretion.
13.4 Any notice given under this Agreement shall be in writing and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to, the intended recipient’s address or by sending it as an attachment by electronic mail to the intended recipient’s email address.
14 Entire Agreement and Variation
14.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
14.2 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15 Governing Law and Jurisdiction
15.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law.