"Agreement"
together the Letter of Instruction and these Terms;
"Customer"
the person, firm or company who purchases the Services from LionbridgePR;
"Confidential Information”
all identifiable methodology, know how, experience, data, databases, flow charts, reports, tables or other material produced in relation to this agreement(including the negotiations leading to it) and any other information of whatever kind (whether commercial, technical, financial, operational or otherwise, whether communicated verbally, in writing or in any other form and whether or not expressly stated to be confidential) relating to a party including its business, operation, products, suppliers and customers and, unless the context otherwise requires, the expression "Confidential Information" shall also include any modification (whether authorised or otherwise) made to any of the above-mentioned information by the Receiving Party or any person to whom it has disclosed that information;
"Intellectual Property"
patents, trademarks, trade secrets and other confidential information copyright, database rights, designs, design rights, inventions, know-how and any other industrial or intellectual property rights of any nature whatsoever, whether registered or capable of registration or not, in any part of the world and including all applications and the right to apply for any of the foregoing rights and the right to sue for past infringements of any of the foregoing rights
“Letter of Instruction”
the letter of instruction from LionbridgePR to the Customer setting out the express terms to apply to the provision by LionbridgePR of the Services;
“LionbridgePR”
LionbridgePR is the trading name of McCarthy Communications Management Ltd.
LionbridgePR Material”
All reports, software, data and other information, materials or items (whether tangible or intangible) created or developed by LionbridgePR in the course of providing the services;
“Services”
The services which LionbridgePR has agreed to supply to the customer, as specified in or by reference to the Agreement
“Terms”
The Terms of Business set out in this document.
2.1 LionbridgePR shall supply, and the Customer shall purchase the Services in accordance with the letter of Instruction and the Terms which shall govern the Agreement to the exclusion of any other terms and conditions. If there is any conflict between the Letter of Instruction and the Terms, the Letter of Instruction shall apply. No conduct by LionbridgePR is to be treated as constituting acceptance of any terms put forward by the Customer.
2.2 The Agreement shall constitute the entire agreement and understanding, and shall supersede any previous agreements, between the parties in relation to the supply of the Services.
2.3 The Customer acknowledges and agrees that it has not been induced to enter into the Agreement in reliance upon, and does not have any remedy in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than expressly set out in the Agreement.
2.4 No variation to the Agreement shall be binding unless agreed in writing by an authorised representative of LionbridgePR.
3.1 The Customer shall:
3.1.1 make full disclosure to LionbridgePR of all information and/or material that LIONBRIDGEPR reasonably requires in order to perform its obligations under the Agreement;
3.1.2 ensure that any such information and/or material is true, accurate and complete in all respects;
3.1.3 ensure that any such information and/or material is free from any defamatory or unlawful content and that it does not infringe any rights (including Intellectual Property rights) of any third party;
3.1.4 ensure that any such information and/or material is provided within sufficient time to enable LionbridgePR to supply the Services in accordance with the Agreement; and
3.1.5 indemnify LionbridgePR (and keep it indemnified) against all costs, claims, losses, expenses and other liabilities arising out of or in connection with any breach by the Customer of its obligations in this clause.
3.2 The Customer shall provide LionbridgePR with such co-operation and access to and use of the Customer's premises (including the use of an office) as LionbridgePR may reasonably require in order to perform its obligations under the Agreement and in the event that any representative of LionbridgePR attends at any premises of the Customer in connection with the provision of the Services the Customer shall:
3.2.1 take all reasonable steps to ensure the health and safety of such representative;
3.2.2 ensure that an adequate policy of insurance is in place in respect of any injury to or death of such representative; and
3.2.3 indemnify LionbridgePR in respect of all loss or damage to the property of LionbridgePR or its representative and all claims arising out of the personal injury or death of any representative of LionbridgePR, unless and to the extent that any such loss, damage, personal injury or death was caused by the negligence of LionbridgePR or any of its employees or agents.
4.1 The Services shall be provided by a suitably [qualified and] experienced employee or other representative of LionbridgePR but LionbridgePR cannot guarantee any specific person to be available to provide the Services.
4.2 LionbridgePR reserves the right where it deems it necessary or desirable to engage the services of third parties in order to provide the Services and the Customer shall be responsible for all fees and expenses charged by such third party. LionbridgePR shall provide the details of such fees and expenses prior to engaging the third party's services and obtain the Customer's written approval thereto. LionbridgePR shall not be responsible for any act or omission of any such third party unless LionbridgePR has otherwise agreed in writing.
4.3 Any advice rendered by LionbridgePR, unless otherwise agreed in writing by LionbridgePR, is solely for the Customer's benefit and must be kept confidential. The advice may not be relied on by the Customer except for the purposes to which it relates. It may not be disclosed to any third party unless LionbridgePR agrees that the Customer may do so, or the Customer has a legal duty to disclose it. LionbridgePR's advice may not be used or relied on by any third party without LionbridgePR's prior written consent.
4.4 Any times or dates specified for the completion of the Services or any stage or pan thereof are approximate only and are intended merely as an estimate and time shall not be of the essence.
4.5 LionbridgePR shall not be responsible for any loss or damage whatsoever caused by any Services not being completed within any specified period (whether or not due to any negligence of LionbridgePR, its agents, employees or subcontractors). In the event of any delay or interruption to the provision of the Services for reasons outside LionbridgePR's control or in the event of any other cause outside LionbridgePR 's control preventing or hindering performance of the Agreement LionbridgePR shall be entitled to postpone the dates for completion of the Services and/or any stage or part of the Services for such period as may be reasonable and/or (whether or not LionbridgePR has postponed such dates) terminate the Agreement by written notice to the Customer to that effect at any time. In the event of such termination the Customer shall pay LionbridgePR all sums due to LionbridgePR under the Agreement including without limitation payment for all work done up to the date of termination based on LionbridgePR 's standard charges current at the time.
5.1 Each party shall safeguard and keep confidential the terms of this Agreement and any and all Confidential Information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party's Confidential Information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under this Agreement. Each party shall procure that its officers and employees and any other persons to whom the Confidential Information is disclosed are made aware of and comply with the provisions of this Clause 5.
5.2 The obligations of each party set out in Clause 5 shall not apply to any information to the extent that such information:
5.2.1 is publicly available or becomes publicly available through no act or omission of that party;
5.2.2 is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority.
5.3 The provisions of this Clause 5 shall survive any termination of this Agreement.
6.1 LionbridgePR shall keep information about the Customer (and, in the case of a business, its relevant people) on its database and LionbridgePR may use it to provide the Customer (and such people) with information on public relations issues and about any of its services which LionbridgePR believes may be of interest and value. LionbridgePR shall process information about the Customer and in the case of a business its relevant people in compliance with all applicable laws and regulations.
6.2 LionbridgePR may also pass the information to in clause 6.1 above to other people or organisations for the purpose of providing the Customer and its relevant people with information about services which may be of interest and value. By accepting these terms, the Customer consents to LionbridgePR using its contact details in this way. (If this is not acceptable the Customer should write to [Ben McCarthy] at the address shown in the Letter of Instruction.
7.1 LionbridgePR fees for the supply of its Services shall be charged on a time basis at its current [hourly/daily] rate details of which are available on request unless otherwise expressly agreed in the Letter of Instruction.
7.2 Travel time shall be charged at fifty per cent of the standard [hourly] rate unless otherwise expressly agreed in the Letter of Instruction.
7.3 Unless otherwise expressly agreed in the Letter of Instruction LionbridgePR fees payable for the Services:
7.3.1 exclude expenses incurred by LionbridgePR in providing the Services, and the Customer shall reimburse LionbridgePR for all such expenses (including, but not limited to, expenses expressly set out in the Letter of Instruction, travel, accommodation and subsistence, mobile and landline telephone calls, faxes, photocopying, printing, photography and artwork);
7.3.2 are expressed exclusive of any value added or other sales tax.
7.4 Where the Customer makes travel arrangements on behalf of LionbridgePR the Customer shall ensure any arrangements are of at least a commensurate standard with travel arrangements made by the Customer on behalf of its senior employees.
7.5 In the event the Customer cancels the Agreement within 4 weeks prior to [completion of the Services] ("the Fixed Date"), LionbridgePR shall be entitled to invoice the Customer for a proportion of the fees as follows:
7.5.1 cancellation 28 to 22 days prior to the Fixed Date, 25% of the fees payable;
7.5.2 cancellation 21 to 15 days prior to the Fixed Date, 50% of the fees payable
7.5.3 cancellation 14 to 8 days prior to the Fixed Date, 75% of the fees payable;
7.5.4 cancellation 7 days prior to the Fixed Date, 100% of the fees payable.
7.6 LionbridgePR shall invoice the Customer for its fees and expenses in respect of the Services, and any applicable value added or other sales tax, at such time or times as are specified in the Letter of Instruction or where no such time or times are specified, either on completion of the Services or at the end of each calendar month in respect of Services provided during that month, whichever is the earlier.
7.7 The Customer shall make payment in pounds sterling immediately on presentation of an invoice raised. LionbridgePR reserves the right to charge the Customer interest on any unpaid sums, from the date that the payment became due to the date of final payment at 3% over the base rate of Barclays Bank PLC, as varied from time to time.
7.8 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to LionbridgePR, LionbridgePR shall be entitled to terminate the Agreement or (without prejudice to its right to terminate subsequently) suspend any further provision of Services to the Customer.
7.9 All sums payable by the Customer under the Agreement are to be paid without set-off, counterclaim or deduction of any description.
8.1 The LionbridgePR Material, together with all Intellectual Property subsisting on, in or in relation to the LionbridgePR Material, shall belong to LionbridgePR absolutely, and no rights in the LionbridgePR Material are granted to the Customer save for a non-exclusive licence to use such of the LionbridgePR Material as is reasonably necessary for the purposes contemplated by the Agreement.
8.2 LionbridgePR reserves all its legal rights to be identified as the creator and owner of the Intellectual Property contained in any LionbridgePR Material it produces. LionbridgePR may reuse any LionbridgePR Material or any parts of LionbridgePR Material that it produces in connection with the Services for other clients or generally in its business; however LionbridgePR shall not disclose any information which is confidential to the Customer.
8.3 All Intellectual Property created by LionbridgePR or any employee, agent or subcontractor of LionbridgePR in the course of performing the Services or exclusively for the purpose of performing the Services shall vest in LionbridgePR upon creation.
8.4 The Customer hereby grants to LionbridgePR a non-exclusive Licence to use Intellectual Property belonging to the Customer for the purpose of performing the Services. The Customer shall indemnify LionbridgePR against all claims, demands, actions, costs, expenses, losses and damages arising from or incurred by reason of any action or claim brought against LionbridgePR for infringement or alleged infringement of any Intellectual Property Rights of any third party in connection with the provision of the Services.
9.1 LionbridgePR shall not be liable to the Customer for third party claims arising as a result of the Services, including but not limited to claims for defamation, unlawful content or other illegality and/or infringement of rights (including Intellectual Property Rights). The Customer shall be responsible for obtaining legal advice in connection with all legal issues arising in respect of or relating to the Services or the subject matter of the Services and LionbridgePR shall have no liability in respect thereof.
9.2 Except where LionbridgePR is shown to have failed to use reasonable care LionbridgePR shall not be responsible for any loss or damage whatsoever arising wholly or partly from any Services carried out by LionbridgePR or from any non performance thereof (whether or not such loss or damage may arise by virtue of any negligence of LionbridgePR’s agents, employees or subcontractors).
9.3 LionbridgePR shall not be liable to the Customer (whether by reason of any negligence by LionbridgePR or any of its employees or agents, any non-fraudulent misrepresentation, or any breach of contract or breach of statutory duty) for any loss of profit, loss of goodwill or damage to reputation, loss of business opportunity or for any indirect loss, damage, cost, expense, claim or other liability whatsoever which arises out of or in connection with the Agreement
9.4 The aggregate liability (inclusive of interest and legal and other costs) of LionbridgePR to the Customer in respect of all claims arising under or in connection with the Agreement (whether by reason of any negligence by LionbridgePR or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or statutory duty or otherwise) shall not in any event exceed [the level of professional indemnity insurance maintained by LionbridgePR].
9.5 Nothing in the Agreement shall operate to limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, or for fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded.
10.1 LionbridgePR shall provide the Services for the term of the Agreement as set out in the Letter of Instruction and neither party shall be entitled to terminate the Agreement save as expressly set out in the Terms and/or the Letter of Instruction.
10.2 Notwithstanding the generality of clause 10.1 and subject to clause 11 where LionbridgePR provides the Services to the Customer on an on-going or long term basis (which for the purpose of this clause 10.2 is for a period greater than [12 months]) and save as otherwise provided in the Letter of Instruction the Customer may only terminate the Agreement by giving not less than 3 months prior written notice to LionbridgePR.
11.1 This clause 1 1 applies if any one or more the following events occurs, or has occurred prior to the date of the Agreement and is continuing:
11.1.1 the Customer commits a material breach of any of the provisions of the Agreement and in the case of a breach capable of remedy fails to remedy the same within 30 days (or such other period as LionbridgePR reasonably thinks fit) after being served with a written notice specifying the breach and requiring it to be remedied; and/or
11.1.2 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a firm) has one of its partners becomes bankrupt or (being a body corporate) enters administration or goes into liquidation; and/or
11.1.3 a security holder takes possession, or a receiver, administrator or administrative receiver is appointed, over all or any of the property or assets of the Customer; and/or
11.1.4 anything analogous to any of the foregoing occurs to the Customer under the laws of any jurisdiction; and/or
11.1.5 the Customer ceases, or threatens to cease, to carry on business; and/or
11.1.6 LionbridgePR reasonably believes that any of the events described above is about to occur.
11.2 LionbridgePR shall be entitled to terminate the Agreement or (without prejudice to its right to terminate subsequently) suspend any further provision of Services without any liability to the Customer;
11.2.1 if any of the Services are provided, but not paid for, the fees payable in respect of those Services and any other sums payable by the Customer under the Agreement shall become immediately due and payable;
11.2.3 Whenever requested by LionbridgePR:-
11.2.3.1 the Customer shall return, and ensure that any persons to whom the Customer has disclosed any part of the LionbridgePR Material also return, to LionbridgePR immediately all material provided by LionbridgePR in tangible form which constitutes the LionbridgePR Material, or any part of it, together with any copies;
11.2.3.2 the Customer shall destroy (or if kept electronically, delete) and ensure that any persons to whom the Customer has disclosed any part of the LionbridgePR Material also destroy (or delete, as the case may be), any notes, memoranda or other records or working materials (in whatever medium) which contain any LionbridgePR Material.
12.1 LionbridgePR reserves the right to terminate the Agreement immediately by giving written notice to the Customer on the discovery of a conflict of interest with an existing client. In these circumstances LionbridgePR shall not be liable to the Customer for any loss, damages, claims, costs, expenses or other sums incurred by the Customer as a result of the termination of the Agreement. Save where LionbridgePR deems there to be a conflict of interest, LionbridgePR shall be entitled to provide services to such other persons, firms and companies as it determines (whether or not they are existing customers of LionbridgePR and notwithstanding any connection with the Customer or any part of its business or with the Customer's marketplace).
13.1 LionbridgePR shall communicate with the Customer at any address, fax, email or telephone number the Customer has provided, unless a particular address is specified.
13.2 Email travels over the public internet and is subject to its shortcomings: once a message has left LionbridgePR 's server, LionbridgePR cannot guarantee that it will remain confidential nor when, or whether, the message will arrive. The Customer acknowledges this and if the Customer does not want LionbridgePR to communicate with the Customer it or its advisers by email the Customer must notify an authorised representative of LionbridgePR in writing. Unless this notification has taken place LionbridgePR shall not be liable for any loss, damages, claims, costs, expenses or sums incurred otherwise by the Customer as a result of LionbridgePR's use of email.
14.1 The Customer is not entitled to assign, sub-contract or otherwise dispose of any of its rights or obligations under this Agreement without the prior written consent of LionbridgePR.
14.2 LionbridgePR may sub-contract its rights and obligations under the Agreement at any time without the consent of the Customer.
15.1 If any provision of the Agreement is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, that provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of the Agreement not affected by such invalidity or unenforceability shall remain in full force and effect.
16.1 Unless expressly stated in the Agreement, nothing in the Agreement shall confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
17.1 The Agreement shall be governed by and construed in accordance with the law of England and Wales, to which each of the parties irrevocably submits.
17.2 Any dispute arising under or in connection with the Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales, to which each of the parties irrevocably submits, providing both parties recognise that LionbridgePR shall be at liberty to start proceedings in any other jurisdiction it deems necessary.