Terms & Conditions

1.0 DEFINITIONS AND INTERPRETATION

1.1 In this agreement the definitions used in the Schedules shall apply.

1.2 The Schedules to this agreement shall form part of this agreement.

1.3 To the extent only of any conflict or inconsistency between the clauses, Schedules and any Orders the order of precedence will be as follows (unless specifically stated to the contrary in this agreement):

1.3.1 the clauses of this agreement;

1.3.2 the Schedules to this agreement; and

1.3.3 the relevant Order.

2.0 APPOINTMENT AND SERVICES

2.1 The Client appoints Omnico Creative to provide the Services to the Client in the UK and European markets the Client occupies (the “Territory”) and Omnico Creative agrees to supply the Services in accordance with the terms of this agreement. Omnico Creative’s appointment shall begin on the Commencement Date and, shall be terminable by either party upon giving the other party one months’ written notice, such notice shall not be given within 6 months of commencement.

2.2 The Services shall initially include those set out in Appendix 1 and thereafter as more specifically set out in the relevant Order or as agreed between the parties in writing.

3.0 ORDERS

3.1 Subject to any variation under clause 17.1, all Orders will be subject to the terms of this agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Client purport to apply under any Order, confirmation of Order, specification or other document whatsoever and whenever).

3.2 Any variation to this agreement and any representations about the Services shall have no effect unless expressly agreed in writing and executed by Omnico Creative.

3.3 For the avoidance of doubt, where Omnico Creative enters into any contract with suppliers on their standard terms of business in connection with the Services, then, provided that such terms are included in the relevant Order, or are agreed in writing with the Client, the rights and liabilities as between Omnico Creative and the Client shall correspond to those between Omnico Creative and the suppliers under such conditions, including in particular any rights of amendment, omission and cancellation, but excluding payment terms which shall be negotiated between the parties from time to time.

3.4 Each Order shall be deemed to be a commitment by the Client to purchase the relevant Services from Omnico Creative and, once accepted by Omnico Creative in accordance with clause 3.6, shall be deemed a commitment by Omnico Creative to provide the relevant Services, in all cases subject to the terms of this agreement.

3.5 All Orders shall be in writing.

3.6 An Order will only be accepted by Omnico Creative where it is in writing and shall be deemed accepted by Omnico Creative once a copy of the Order has been returned to the Client, signed by a duly authorised signatory of Omnico Creative.

3.7 No Services will be provided or work shall be undertaken by Omnico Creative without an Order.

3.8 Any quotation or estimate made by Omnico Creative is given subject to the terms of this agreement. Quotations will be valid for 28 days from date of issue.

3.9 Omnico Creative shall take all reasonable steps to comply with any requests from the Client to cancel any Order, or any Schedules or work in progress, insofar as this is possible within the scope of its contractual obligations to its suppliers. Any amendments or cancellation shall be implemented by Omnico Creative provided that the Client shall be responsible for any costs or expenses incurred, or to which Omnico Creative is committed prior to, or as a result of, the cancellation or amendment. The Client shall also pay Omnico Creative’s fees covering the cancelled or amended Services, as well as any charges imposed on Omnico Creative by third parties arising from the cancellation or amendment.

3.10 Once provision of the relevant Services contained in an Order has commenced, the Client will only be able to cancel that Order (or any part of that Order) provided that the Client:

3.10.1 reimburses Omnico Creative for costs reasonably and necessarily incurred up to the date of such cancellation (to include the costs referred to at clause 3.9); and

3.10.2 pays all charges incurred by the Client in relation to the relevant Services up to and including the date of any such cancellation.

3.11 The Client may request changes to an Order and Omnico Creative shall use all reasonable endeavours to accept such change requests (provided that Omnico Creative is able to do so within its contractual obligations to third parties) in accordance with clause 3.12. Any request for change in the Services will not take effect until Omnico Creative have agreed the change with the Client in writing.

3.12 Where any changes requested in accordance with the above provisions, involve further charges or expenses in relation to that Order, Omnico Creative will notify the Client in writing of those further charges or expenses. Omnico Creative shall not be obliged to accept any change to an Order if they involve further cost unless the Client agrees to pay those charges in addition to or in the alternative to the charges set out in the relevant Order (as applicable).

3.13 Omnico Creative will use all reasonable endeavours to provide contact reports being a written record of all matters of substance discussed at meetings or in telephone conversations between the parties within 10 Business Days following the meeting or conversation. If the subject matter of a contact report is not questioned by the Client within 5 Business Days of its receipt, it will be taken to be an accurate record of the meeting or telephone conversation to which it refers.

4.0 APPROVALS AND AUTHORITY

4.1 Any reference in this agreement to the Client’s “written approval” shall mean written approval by any director or employee of the Client. Omnico Creative shall not be responsible for any delay in the performance of the Services resulting from the unavailability of any such person to provide written approval.

4.2 The Client’s written approval of:

4.2.1 copy, layouts or artwork and costs of production will be Omnico Creative’s authority to purchase production materials and prepare proofs;

4.2.2 drafts and proofs will be Omnico Creative’s authority to publish;

4.2.3 television, cinema and radio scripts and/or storyboards with estimates or quotations of the production cost will be Omnico Creative’s authority to enter into production contracts and engage performers;

4.2.4 films and recordings with estimates or quotations of the cost will be Omnico Creative’s authority to transmit;

4.2.5 media schedules and estimates will be Omnico Creative’s authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by media or suppliers; and

4.2.6 estimates provided by suppliers shall be the Client’s authorisation for Omnico Creative to enter into contracts with such suppliers on the basis of such estimates.

4.3 Omnico Creative will seek written approval from the Client in respect of draft press releases, articles, photographs, captions, copy, layouts, artwork and/or scripts and estimates of Campaigns.

4.4 The Client undertakes to notify Omnico Creative forthwith if the Client considers that any statement made in any document submitted by Omnico Creative to the Client for approval is incorrect or misleading in any way, or is likely to give rise to any claim or action against Omnico Creative, whether for defamation or otherwise.

4.5 The Client shall keep Omnico Creative fully indemnified against any costs, claims, proceedings or demands arising out of or in connection with any press releases, publications or other material prepared for the Client by Omnico Creative and approved by the Client prior to publication or transmission.

5.0 ACCEPTANCE

5.1 Where Omnico Creative consider that the relevant Services have been completed Omnico Creative will notify the Client in writing. Within 5 Business Days of receipt of such notice from Omnico Creative, the Client shall issue a written notice to Omnico Creative either:

5.1.1 confirming the Client’s acceptance of such completion of the relevant Services; or

5.1.2 notifying Omnico Creative that all or part the relevant Services have not been completed in accordance with any relevant Order in which case the parties shall attempt to agree and will discuss the matters put forward by the Client, both parties acting reasonably, with a view to agreeing what, if any, remedial action should be taken and if agreed Omnico Creative shall re perform such part of the Services at issue within a reasonable time at no extra cost to the Client. If the parties fail to reach agreement, the matter shall be dealt with in accordance with clause 16.

5.2 In the event that the Client fails to notify Omnico Creative in accordance with clause 5.1 above the relevant Services shall be deemed completed.

6.0 RESPONSIBILITIES OF THE CLIENT

6.1 The Client will give Omnico Creative clear briefings and ensure that all the facts given about the proposed Services are accurate.

6.2.1 notify Omnico Creative of any enquiries related to the Campaign(s) from any of the media;

6.2.2 advise Omnico Creative well in advance of any major events in the Client’s business such as the launch of a new product or service and/or the opening of any new premises;

6.2.3 to permit Omnico Creative (by its representatives) to attend meetings, when reasonably necessary, with any advertising and/or marketing services agencies and other advisers engaged by the Client.

6.3 The Client warrants that:

6.3.1 to the best of its knowledge and belief, all information provided by it to Omnico Creative is accurate and complete; and

6.3.2 that the Client is entitled to provide such information, and any photography, artwork, literature or other materials provided by or on behalf of the Client for use by Omnico Creative without recourse to any third party.

6.4 The Client agrees not to discuss the Campaign(s) [to any reasonably significant extent] with any representative of the media other than through or with the knowledge of Omnico Creative.

7.0 OUR CHARGES

7.1 Details of Omnico Creative’s charges are set out in Schedule 4 or will be set out in the relevant Order or as agreed by the parties from time to time. If charges for a particular Service are not specified or agreed, these shall be undertaken at Omnico Creative’s standard rates for such services [as notified by Omnico Creative to the Client in writing from time to time/as set out in Schedule 4].

8.0 DATA PROTECTION

8.1 With respect to the parties’ rights and obligations under this agreement, the parties agree that the Client is the data controller and that Omnico Creative is the data processor (each term having the meaning given to it in the Data Protection Act 2018).

8.2 Each party shall comply with the relevant obligations of the Data Protection Legislation.

8.3 the Client shall ensure that any mailing list or Client database supplied to Omnico Creative shall comply with the requirements of all Data Protection Legislation in force from time to time.

8.4 In respect of any personal data (having the meaning given to it in the Data Protection Act 2018) processed by Omnico Creative pursuant to this agreement for and on behalf of the Client, Omnico Creative warrants that it will:

8.4.1 comply at all times with Data Protection Legislation as a data processor;

8.4.2 only process the personal data on behalf of the Client to the extent necessary to provide the Services and then only in accordance with this agreement and on instructions received from the Client from time to time;

8.4.3 take such steps as are required in order to put in place sufficient protection for the personal data so as to satisfy the requirements of the Data Protection Legislation (as are relevant to a data processor) whilst it is being processed by Omnico Creative or any suppliers or sub-contractors and promptly give notice to the Client of any actual or suspected incident of unauthorised or accidental disclosure of the personal data;

8.4.4 not cause or permit the personal data to be transferred outside the European Economic Area (as defined in the Data Protection Act 2018) without the Client’s prior written consent.

9.0 CONFIDENTIALITY

9.1 Each party agrees to keep confidential all information of a confidential nature relating to the other and its business as disclosed by that other party or any other third party (“Confidential Information”). Each agrees not to disclose or make use of any such Confidential Information without the prior written consent of the other. This obligation shall remain in force for the term of this agreement and afterwards until such information ceases to be confidential (otherwise as a result of a breach of confidentiality obligations). This obligation shall not apply to information already known to the other prior to disclosure of such information or to information that is already in the public domain.

10.0 LIMITS OF LIABILITY

10.1 This Clause 10 and the following provisions set out each parties’ entire liability (including any liability for the acts or omissions of Omnico Creative’s employees, agents and sub-contractors) to the other party in respect of:-

10.1.1 any breach of this agreement; and

10.1.2 any representation, statement or tortuous act or omission including negligence arsing under or in connection with this agreement.

10.2 Nothing in this agreement shall exclude or in any way limit either party’s liability for:

10.2.1 fraud or fraudulent misrepresentation;

10.2.2 for death or personal injury caused by its negligence;

10.2.3 any other liability to the extent such liability may not be excluded or limited as a matter of law.

10.3 Subject to clause 10.2, Omnico Creative’s maximum aggregate liability under or in connection with this agreement, whether in contract, tort (including negligence), under statute or otherwise, arising from any delay, default, neglect or breach of this agreement occurring will in no circumstances exceed 100% of the charges paid under this agreement for Services for the previous 12 month period.

10.4 Neither Omnico Creative nor the Client shall be liable under this agreement for the loss of any contracts, goodwill, loss of data, loss of profits, loss of reputation (whether direct or indirect), loss of savings, interruption to business, nor any special, consequential or indirect loss that may be suffered or incurred as a result of Omnico Creative’s appointment, howsoever arising, and whether or not such loss or damage is foreseeable or known.

10.5 Omnico Creative shall not be liable under this agreement for: (i) any loss or damage suffered by the Client arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Client or arising from any cause beyond Omnico Creative’s reasonable control; or (ii) any delay in or omission of publication or transmission or for any error in any press or other publication unless such delay, omission or error is due to its own default or neglect.

10.6 For the Term Omnico Creative shall maintain appropriate insurance cover in place, taking account of its limits of liability as set out in this clause.

11.0 CONDUCT OF CLAIMS

11.1 Either party shall notify the other, in writing, as soon as is reasonably practicable, of any claim in respect of which the notifying party may be entitled to claim against the other under clause 10. Provided that the notifying party is indemnified to its reasonable satisfaction against all liabilities or losses it incurs as a result, (a) it shall not make any admission or any offer to settle any such claims without prior written authority from the other party, who shall have conduct of any claim, including (without limitation) the right to compromise any such claim on such terms as it deems appropriate in its absolute discretion; and (b) it shall co-operate fully in the defence of any such claim, including (without limitation) the provision of any relevant information or documentation.

12.0 TERMINATION

12.1 Either party shall each have the ability to terminate this agreement forthwith if:

12.1.1 the other is in breach of any of its material obligations and such breach (if capable) has not been remedied within 28 days of its receipt of written notice to do so; or

12.1.2 the other becomes insolvent or has a receiver or administrative receiver appointed, has called a meeting of creditors, resolves to go into liquidation or has a petition for its winding up presented (except for any bona fide amalgamation or reconstruction while solvent); or

12.1.3 the other is unable to pay its debts as they become due as defined under the Insolvency Act 1986.

12.2 Omnico Creative shall have the right to suspend Services or terminate this agreement forthwith if Omnico Creative have not received payment of an invoice from the Client within 5 Business Days of giving the Client written notice that payment of such invoice has not been made in accordance with Schedule 4.

12.3 [The Client shall have the right to terminate this agreement on three months’ written notice in the event that Omnico Creative fail to meet any of the KPIs in three consecutive months. The parties agree that this clause sets out the Client’s sole remedy in respect of any failure of Omnico Creative to meet the KPIs.]

12.4 Upon termination of Omnico Creative’s appointment and this agreement for whatever reason:

12.4.1 the Client agree to pay all outstanding invoices and sums due to Omnico Creative in respect of Omnico Creative’s performance of the Services; and

12.4.2 ownership of any part completed Work, which is due to pass to the Client pursuant to Schedule 5, shall pass to the Client subject to the Client paying any outstanding charges in respect of that part of the Work; and

12.4.3 the Client shall take over responsibility for such third party commitments which Omnico Creative have entered into on the Client’s behalf.

12.5 Following the termination of this agreement:

12.5.1 the following provisions will continue in force: clauses 9, 12.5, 12.6, 12.7 and 17.0 together with any other provisions which expressly or impliedly continue to have effect after expiry or termination of this agreement; and

12.5.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including without limitation claims for damages for breach) and liabilities which have accrued prior to the date of termination.

12.6 Within 30 days after the date of termination each party will:

12.6.1 return to the other party all Confidential Information including without limitation all copies and extracts) and all other property (whether tangible or intangible) of the other party in its possession or control;

12.6.2 destroy or permanently erase (if technically feasible) all documents and all records (in any media) created by it or on its behalf that use, concern or are based on any Confidential Information of the other party (“Records”); and

12.6.3 cease to use the Confidential Information of the other party.

12.7 Each party may retain any Confidential Information of the other party and/or Records which it has to keep to comply with any Applicable Law or which it is required to retain for insurance, accounting or taxation purposes. Clause 9.0 will continue to apply to retained Confidential Information and Records, which may only be used for the purposes for which they have been retained.

13.0 ASSIGNMENT

13.1 Neither party shall assign, sub-license, sub-contract or otherwise deal with any rights and obligations under this agreement or an Order without the other party’s express prior written consent, save that Omnico Creative may sub-contract part of the Services without the Client’s consent.

14.0 REVIEW MEETINGS

14.1 Throughout the Term Omnico Creative will ensure that a senior member of Omnico Creative’s team will attend quarterly review meetings with the Client to ensure that expectations are controlled and met and to discuss:

14.1.1 measurement against objectives;

14.1.2 the following quarter’s activities; and

14.1.3 learnings from the previous quarter.

15.0 BUSINESS CONTINUITY AND FORCE MAJEURE

15.1 Omnico Creative will, at all times, maintain and comply with the Business Continuity Plan, and ensure that Omnico Creative are, at all times, able to implement the Business Continuity Plan immediately upon an event occurring which the Business Continuity Plan is expressed to cover, or reasonably can be expected to cover. The Business Continuity Plan will be created and maintained in accordance with good industry practice.

15.2 Omnico Creative shall not be in breach of this agreement or otherwise liable to the Client for any failure to perform or delay in performing Omnico Creative’s obligations under this agreement to the extent that such failure or delay is due to a Force Majeure Event and Omnico Creative have complied with the provisions of clause 15.3.

15.3 If a Force Majeure Event occurs, Omnico Creative will:

15.3.1 promptly upon becoming aware of the Force Majeure Event give the Client written notice of the occurrence, anticipated duration and impact of the Force Majeure Event;

15.3.2 use reasonable endeavours to mitigate the effects of the Force Majeure Event, to continue to perform the affected obligations notwithstanding the occurrence of the Force Majeure Event and to ensure that the Force Majeure Event comes to an end; and

15.3.3 continue to perform all of Omnico Creative’s obligations under this agreement, the performance of which are not affected by the Force Majeure Event.

15.4 If a Force Majeure Event which gives rise to relief from liability under clause 15.2 continues for a period of more than two months or more, the Client will be entitled to terminate this agreement by giving not less than one months’ written notice to Omnico Creative to that effect.

16.0 DISPUTE RESOLUTION

16.1 In the event of a dispute between the parties, the parties shall seek to resolve the dispute amicably but, should the dispute not be resolved within five Business Days it shall, in the first instance escalate the dispute to the “Main Contact” at the Client and “Main Contact” at Omnico Creative who shall meet within ten Business Days of the dispute to attempt to resolve the issue. If the matter cannot be resolved at that meeting, the dispute shall be escalated to the “CEO” at the Client and to a “Senior Contact” at Omnico Creative who shall meet within 10 Business Days of such escalation to attempt to resolve the issue.

16.2 In the event that the dispute persists after such meetings, either party shall be entitled to refer the matter for mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.

16.3 If the parties have not settled the claim or dispute by mediation within 42 days from the initiation of the mediation, the dispute shall be referred to and finally resolved by the courts in accordance with clause 17.5.

17.0 DISPUTE RESOLUTION

17.1 No variation to this agreement shall be effective unless made in writing and signed by a duly authorised representative of each of the Client and Omnico Creative.

17.2 Nothing in this agreement or an Order shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.

17.3 Each provision in this agreement may be separated from each other provision. If at any time, any provision in this agreement is or becomes invalid, illegal or unenforceable; this will not affect any of its other provisions which will continue in full force and effect.

17.4 Any waiver of a default or other failure to comply with obligations under this agreement shall not constitute a waiver of subsequent defaults or failure, whether similar or dissimilar.

17.5 This agreement and any claim or dispute in relation to it is governed by, and will be interpreted under, English law. Legal proceedings in connection with this agreement may be taken in the courts of England only.

17.6 A third party who is not a party to this agreement (including without limitation any employee, officer, agent, representative or sub-contractor of either party) shall not have any right to enforce any term of this agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing between the Client and Omnico Creative.

17.7 This agreement and any Orders shall set out the entire agreement and understanding between the Client and Omnico Creative in connection with the supply of the Services and Omnico Creative’s appointment and shall supersede and replace all documentation previously issued by Omnico Creative in connection with the supply of the Services.

17.8 This agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties at such time as all the signatories hereto have signed a counterpart of this agreement.

SCHEDULE 2 – DEFINITIONS

SCHEDULE 3 – EMPLOYEES AND KEY PERSONNEL

1 Omnico Creative will use all reasonable endeavours to ensure that it does not either change the role or responsibilities of the Key Personnel without the Client’s consent or remove any Key Personnel from the provision of the Services without the prior written consent of the Client except where such Key Personnel is absent on sick leave or other statutory leave (such as maternity, parental or adoption leave) or has been promoted or has ceased to be employed by Omnico Creative.

2 Omnico Creative will use all reasonable endeavours to maintain continuity of each of the Key Personnel in their roles. If at any time during the Term any Key Personnel role is vacant:

a. Omnico Creative will use its reasonable endeavours to procure that

i. it finds a suitable candidate to fill the vacant Key Personnel role as soon as practicable; and

ii. any replacement Key Personnel will have the relevant experience and be fully competent and suitable to carry out the tasks and duties assigned to the member of Key Personnel to be replaced;

b. Omnico Creative will provide details of the qualifications, experience and suitability of any potential permanent candidate which it finds to fill the vacant Key Personnel role to the Client as soon as practicable; and

c. Omnico Creative will not be entitled to appoint any person to permanently fill any vacant Key Personnel role without the Client’s prior written consent (not to be unreasonably withheld or delayed) and the Client retains the right to interview any candidate prior to the making of such appointment.

3 Any person appointed to fill a vacant Key Personnel role will be considered Key Personnel for the purposes of this agreement from the date of such appointment.

4 During the Term and for twelve months after termination of this agreement, neither party shall, without the written consent of the other, solicit or entice (either directly or indirectly) or attempt to solicit or entice (or authorise the taking of such action by any other person) any person who is employed by the other or has been employed by the other during the preceding six months, and who has been involved with the Services under this agreement, to terminate their employment with the other party.

5 If Omnico Creative consents to a member of Omnico Creative’s staff joining the Client pursuant to paragraph 4, Omnico Creative will charge a fee in consideration for such consent. Such fee shall be equivalent to 20% of the gross annual salary that shall be paid by the Client to that employee by the Client. Omnico Creative shall invoice the Client immediately upon the commencement of the employment of the relevant employee by the Client and such invoice shall be payable by the Client immediately upon presentation. If Omnico Creative does not require the employee to complete the notice period required by his or her terms of employment, Omnico Creative reserves the right to charge the Client an additional fee equivalent to the salary payable by Omnico Creative for the period of unfulfilled notice.

6 TUPE

a. The parties agree that the performance of the Services by Omnico Creative pursuant to this agreement may constitute a relevant transfer (or transfers) for the purposes of TUPE.

b. In the event that any of the Client’s employees or the employees of any of the Client’s suppliers (“the Client Employees”) transfer to Omnico Creative pursuant to TUPE, the Client undertakes to Omnico Creative to fully indemnify and hold Omnico Creative harmless against all any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding (including legal and other professional fees and expenses) which Omnico Creative may suffer, sustain, incur, pay or be put to arising from or in connection with:

i. any failure by the Client or the Client’s suppliers (as appropriate) to comply with the Client’s obligations to the Client Employees prior to such transfer;

ii. the transfer to Omnico Creative, by virtue of TUPE, of the employment of any of the Client Employees;

iii. the failure of the Client or the Client’s suppliers to comply with their respective obligations under TUPE.

c. If any contract of employment or engagement or collective agreement of the Client Employees transfer to Omnico Creative such that it has effect as if originally made between Omnico Creative and any person or body or their representatives as a result of the provisions of TUPE or otherwise Omnico Creative may terminate such contract or agreement and the Client shall indemnify and hold Omnico Creative harmless against all actions, awards, claims or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding (including any liability to taxation and legal and other professional fees and expenses) that Omnico Creative may suffer, incur, sustain, pay or be put to by reason of, on account of or arising out of such termination.

d. Without prejudice to the other provisions of this clause, the Client shall, at the Client’s own expense, give Omnico Creative such assistance as Omnico Creative may reasonably require to contest any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding by any the Client Employees or their representatives resulting from or in connection with this clause, including, that the Client shall, on request, provide to Omnico Creative such information or documents as Omnico Creative may reasonably require relating to the terms of employment, pension and life assurance arrangements, health benefits, welfare or any other matter concerning any of the Client Employees or any trade union, employee representative or body of employees or their representatives or relating to collective agreements or collective or individual grievances in the period before the transfer.

e. The parties agree that termination or expiry of this agreement, or part, or otherwise may result in a relevant transfer for the purposes of TUPE.

f. In the event that any of Omnico Creative’s employees or the employees of any of Omnico Creative’s suppliers (“Transferring Employees”) transfer on termination or expiry of this agreement or part pursuant to TUPE, Omnico Creative undertake to the Client to fully indemnify and hold the Client harmless against all any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding (including legal and other professional fees and expenses) which the Client may suffer, sustain, incur, pay or be put to arising from or in connection with:

i. any failure by Omnico Creative or Omnico Creative’s suppliers (as appropriate) to comply with their obligations to the Transferring Employees prior to such transfer;

ii. the transfer to the Client, by virtue of TUPE, of the employment of any of the Transferring Employees;

iii. the failure of either of Omnico Creative or Omnico Creative’s suppliers to comply with their respective obligations under TUPE.

g. If any contract of employment or engagement or collective agreement of the Transferring Employees transfers to the Client such that it has effect as if originally made between the Client and any person or body or their representatives as a result of the provisions of TUPE or otherwise the Client may terminate such contract or agreement and Omnico Creative shall indemnify and hold the Client harmless against all actions, awards, claims or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding (including any liability to taxation and legal and other professional fees and expenses) that the Client may suffer, incur, sustain, pay or be put to by reason of, on account of or arising out of such termination.

h. Without prejudice to the other provisions of this clause Omnico Creative shall, at Omnico Creative’s own expense, give the Client such assistance as the Client may reasonably require to contest any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding by any Transferring Employee or their representatives resulting from or in connection with clause, including, that Omnico Creative shall, on request, provide to the Client such information or documents as the Client may reasonably require relating to the terms of employment, pension and life assurance arrangements, health benefits, welfare or any other matter concerning any of the Transferring Employees or any trade union, employee representative or body of employees or their representatives or relating to collective agreements or collective or individual grievances in the period before the transfer.

SCHEDULE 4 – CHARGES AND PAYMENT

1 GENERAL

Omnico Creative’s fees for the Services shall be as per the agreement and set out in the Order(s).

2 OTHER SERVICES

a. E.g. Sales promotion, advertising, PR, digital and social media etc will be costed as agreed and payment terms will be detailed in a separate Schedule.

3 PROJECT CHARGES

All work and projects will be quoted in advance and no work will be commenced without agreement from the Client.

The cost of each project is determined through a costing system linked to competitive hourly rates which differ according to the role and experience of Omnico Creative’s staff involved.

In some cases retainer fees will be required for the account and these will be included on a quotation document.

In every case, detailed timesheets (to the nearest 15 minutes) are kept by Omnico Creative on each job undertaken for the Client.

We reserve the right to increase our prices annually by the Retail Price Index or 2%, whichever is greater. This increase will occur only once per annum on the 1st January.

4 MISCELLANEOUS

If it is agreed that work shall be undertaken outside the Territory, or that Omnico Creative shall provide services that are outside the scope of the Services, or that the scope of an agreed Campaign shall be extended, Omnico Creative reserves the right to charge a further fee for any such additional work. Any such additional fee shall be subject to the Client’s prior written approval, such approval not to be unreasonably withheld, conditioned or delayed.

If Omnico Creative is required to make a cost commitment or payment in excess of £1,000 in order to complete an agreed Campaign, the Client shall be required to provide Omnico Creative with sufficient funds prior to the payment or commitment being made.

The Client shall reimburse Omnico Creative for all Omnico Creative’s expenses and Disbursements reasonably and properly incurred by Omnico Creative in the provision of the Services. Unless otherwise stated in this agreement, Omnico Creative’s contracts with third party suppliers in respect of the Services shall be made in accordance with media rate cards or other standard or individual conditions and contracts. The rights and liabilities as between the Client and Omnico Creative shall correspond to those between Omnico Creative and the various media and other suppliers under such conditions, including in particular any rights of amendment, omission and cancellation. On the Client’s written request Omnico Creative shall supply the Client with the relevant terms and conditions.

All prices quoted are exclusive of VAT which shall, where applicable, be payable by the Client in addition to the quoted charges.

The cost to Omnico Creative of materials or services purchased overseas for the Services may be more or less than the cost anticipated at the date when Omnico Creative ordered the relevant materials or services (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, Omnico Creative shall charge the Client at the rate of currency exchange in operation on the date Omnico Creative pays for the relevant materials or services, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.

5 PAYMENT

All payments due under this agreement shall be made by electronic transfer to the HSBC Bank account detailed on the invoice.

Payment of the charges for all Services save for third party costs under this agreement is due in full without any deduction in accordance with the time for payment set out in the relevant Order, or (if earlier) within 30 days of the date of the relevant invoice is received by the Client, unless otherwise agreed.

Where relevant Omnico Creative will invoice the Client in respect of all Disbursements on the last Business Day of each month in respect of any media committed since the previous invoice and the Client will pay such invoices within 5 Working Days.

Where a surcharge is levied by any third party supplier against Omnico Creative due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to Omnico Creative the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

If any sum payable under this agreement is not paid on or before the due date for payment Omnico Creative will be entitled to charge the Client interest on that sum at 5% per annum above the base lending rate from time to time of HSBC Bank plc from the due date until the date of payment (whether before or after judgement), such interest to accrue on a daily basis. This right extends to any part of an invoice of which payment is withheld should it be subsequently established that the amount in question was invoiced in accordance with this agreement.

If, prior to notice of termination of this agreement, Omnico Creative has at the request of the Client prepared detailed plans or proposals for future advertising in respect of which Omnico Creative has not been remunerated, Omnico Creative shall be entitled to receive from the Client payment on the basis of fair compensation for work done, less any remuneration which Omnico Creative may otherwise receive from the Client in respect of its work under this agreement during the period of notice.

SCHEDULE 5 – INTELLECTUAL PROPERTY RIGHTS

1 All Work prepared by Omnico Creative and paid for by the Client will be the Client’s property but the Client will not necessarily own the copyright(s) or other Rights in it. For the avoidance of doubt, the Client shall not own the copyright in ‘stock’ photographs obtained from news or photographic agencies for particular advertisements or to photographic or film negatives or to any other medium in which this material may be supplied.

2 Once the relevant Services have been deemed completed in accordance with clauses 5.1 or 5.2, Omnico Creative hereby absolutely and irrevocably assigns to the Client, all the Rights that it has in and to any Agency Material for use for the Purpose only PROVIDED THAT:

a. all charges and expenses have been invoiced and settled in full by the Client in relation to such Rights; and

b. the Client or any the Client Group Company has made use of such Rights in the public arena for the Purpose or, acting reasonably, has indicated an intention to use such Rights.

3 In the event that either Omnico Creative or the Client wish to use the Rights in Agency Material for any purpose other than the Purpose, it shall first seek the consent of the other party (which shall not be unreasonably withheld or delayed). The revenue (less all direct costs incurred by the relevant party) generated by the use of such Rights other than for the Purpose shall be shared equally by the parties.

4 Omnico Creative shall inform the Client as soon as possible if it intends to incorporate any Commissioned Material in the Campaign(s). Omnico Creative will use its reasonable endeavours to obtain an unconditional written assignment to the Client of all Rights in any such Commissioned Materials at pre-agreed cost to the Client. Omnico Creative shall notify the Client in writing if no such assignment of the Rights in such Commissioned Materials can be obtained on reasonable terms. The Client shall then decide whether it still wishes the relevant Commissioned Materials to be used in the Campaign(s), and if so, Omnico Creative shall negotiate with the owner of such Rights to obtain such usage rights as Omnico Creative reasonably believes will be required at the time of such negotiations. Omnico Creative shall grant to the Client (at the Client’s expense) only such Rights in any Commissioned Materials as Omnico Creative is permitted by the relevant Third Party to grant to the Client.

5 Where Existing Material is included in any Work (other than Client Material), Omnico Creative shall use all reasonable endeavours to obtain such usage rights in all such Existing Material as are deemed necessary by Omnico Creative for the Purpose at the time such material is selected or obtained, having considered the usage information which will be provided.

6 Where Omnico Creative creates Agency Material or any other Work under this agreement, it is acknowledged that during the Term such Agency Material and/or Work can be used by the Client and other the Client commissioned suppliers in accordance with the terms of this agreement:

a. for the Purpose; and

b. from the time of delivery of such Work to the due date of payment for such Work; and

c. thereafter only after payment in respect of such Work has been made in full.

7 Omnico Creative acknowledges that as between Omnico Creative and the Client, the Client owns and will retain any and all Rights in Client Material that the Client first provided to Omnico Creative. The Client hereby grants (or where the Client Material is owned by a third party procures the grant) to Omnico Creative a non-exclusive royalty free licence to use the Client Material insofar as is necessary for Omnico Creative to provide the Services during the Term and for the purposes paragraphs 14 and 15.

8 The Client acknowledges that Omnico Creative owns and shall retain any and all Rights in the Existing Software, and, subject to paragraph 9, Omnico Creative hereby grants (except in the case of Existing Software that is owned by a third party unless Omnico Creative undertake to obtain a licence for the Client to use such Existing Software in the relevant Order) to the Client a non-exclusive, irrevocable world-wide licence to use such Existing Software for the Term in accordance with the terms of this agreement as amended by any relevant Order.

9 Where the use of Existing Software that is third party software is required in order for the Client to be able to make use of the Services, Omnico Creative shall highlight this fact in the Order and shall use all reasonable endeavours to procure all necessary Rights for Omnico Creative to supply such third party Existing Software to the Client and for the Client to use such third party Existing Software in accordance with the terms of this agreement.

10 The Client and Omnico Creative agree to execute at the requesting party’s cost any and all documents that may be necessary to vest in the requesting party full legal and beneficial title to the Rights it is entitled to pursuant to this Schedule.

11 In relation to any brand names, logos or trade marks, domain names created or obtained by Omnico Creative for use by the Client pursuant to the Services other than Client Materials, Omnico Creative shall not be responsible for legal clearance of any trade mark, domain name or other intellectual property rights. The Client shall be solely responsible for conducting any such legal searches and in any case shall be responsible for the cost of those searches.

12 Subject to paragraph 13, Omnico Creative indemnifies and keeps indemnified the Client and/or any the Client Group Company against any or all costs, demands, expenses (including legal expenses), claims, fees, losses, damages or liability incurred by the Client and/or any the Client Group Company arising out Omnico Creative’s breach of this Schedule as a result of or in connection with the infringement and/or alleged infringement of a third party’s Rights in respect of the use by the Client and/or any the Client Group Company and/or any the Client commissioned supplier’s of any Work in accordance with the Purpose.

13 Omnico Creative will not be liable to the Client under this agreement for any claim that the Agency Material and/or Commissioned Material infringes any third party’s Rights or is in breach of any Applicable Laws, to the extent that such liability or breach results from:

a. a claim that Client Material infringes third party Rights or breaches any such Applicable Laws; or

b. subject always to the provisions of paragraph 4, the Client’s use of the Agency Material and/or Commissioned Material is not compliant with the Purpose.

14 Omnico Creative will request permission from the Client to include them in; Omnico Creative’s promotional material and on Omnico Creative’s website, the fact that the Client is one of Omnico Creative’s clients and the Client acknowledges that it is happy for Omnico Creative to use the Client’s corporate and/or trading names and logos for this purpose, (subject to Omnico Creative’s complying with any guidelines for the use of such materials as notified by the Client) and provided that consent in writing for such use is required by the Client where Omnico Creative wish to use the Marketing Plan or any other Work which is not yet published by or on behalf of the Client.

15 Notwithstanding any of the above Omnico Creative with the Client’s prior consent (such consent not to be unreasonably withheld or delayed),:

a. shall be able during and after the Term to use Agency Material and/or Commissioned Material (after first publication, on behalf of the Client) for the purpose of promoting Omnico Creative’s own business by means including, but not limited to, inclusion in Omnico Creative’s portfolio, on Omnico Creative’s own web site and for purposes associated with the entry and conduct of industry awards schemes; and

b. shall retain the copyright in any material contained in any presentation made in competition with any other agency in the event of Omnico Creative’s presentation being unsuccessful.

c. may use any of Client Materials and/or the Commissioned Materials for the purposes of internal training or, in the promotion of Omnico Creative.