Terms
Advertising Agency Agreement
PARTIES
(1) SUPERMACHINE NV, a Belgian corporation having its principal place of business at Meerseniersstraat 4, 9000 Gent, Belgium, duly represented by the undersigned, hereinafter referred to as “SUPERMACHINE”
(2) This agreement is entered into by and between The Client’s company, hereinafter referred to as the "Client," and any individual or entity engaging in business with SUPERMACHINE NV.
BACKGROUND
(A) SUPERMACHINE is in the business of providing advertising agency services for a fee.
(B) The Client wishes to retain SUPERMACHINE to provide, and SUPERMACHINE wishes to provide to the Client, the advertising agency services set out in the "Scope of work" section of this document above.
AGREED TERMS
1. THE SERVICES AND DELIVERABLES
1.1 The Client hereby appoints SUPERMACHINE to provide services related to the advertising and promotion of Client's goods and/or services (hereafter the "Products") set out in the "Scope of work" section of this document above, further to the Client’s briefing.
1.2 The Services may result in SUPERMACHINE or its subcontractor creating materials which include, whether finished or unfinished and whether used by Client or not, all advertising, marketing, promotion and merchandising materials, copy, storyboards, concepts, ideas, trademarks, trade names, domain names, logos, slogans, taglines, designs, inventions, discoveries, website style, content, structure and look and feel, internet portals, press releases, research, videos, presentations and proposals, artwork, videos and original music and lyrics (hereafter the “Deliverables”), as may be further detailed in the "Scope of work" section of this document above.
1.3 SUPERMACHINE shall use all reasonable endeavours to perform its obligations under this Agreement within a reasonable timeframe. SUPERMACHINE shall use all reasonable endeavours to meet any performance dates for the Services specified by the Client, but unless expressly agreed otherwise, any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
1.4 SUPERMACHINE warrants to the Client that the Services will be provided using reasonable care and skill.
1.5 SUPERMACHINE shall have the right to use subcontractors for part of the Services.
1.6 Any change of the scope of the Agreement, including briefings, shall only be valid if all parties agree in writing.
2. THE CLIENT’S OBLIGATIONS
2.1 The Client shall:
(a) ensure that the terms of the order, briefings and any information it provides to SUPERMACHINE are clear, complete and accurate;
(b) cooperate with SUPERMACHINE in all matters relating to the Services;
(c) provide SUPERMACHINE with such information and materials as SUPERMACHINE may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects and provided in a timely manner;
2.2 If SUPERMACHINE's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
(a) without limiting or affecting any other right or remedy available to it, SUPERMACHINE shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays SUPERMACHINE's performance of any of its obligations;
(b) SUPERMACHINE shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SUPERMACHINE's failure or delay to perform any of its obligations as set out in this Section; and
(c) the Client shall reimburse SUPERMACHINE on written demand for any costs or losses sustained or incurred by SUPERMACHINE arising directly or indirectly from the Client Default.
2.3 The Client shall inform SUPERMACHINE without delay if the Client considers that any Deliverables submitted to the Client by SUPERMACHINE for approval is false or misleading or in any way contrary to law.
3. PAYMENT TERMS
3.1 In consideration for the Services, Client shall pay SUPERMACHINE the fees at the rates and in accordance with the budget set forth in the "Budget estimation" section of this document above.
3.2 Client shall reimburse SUPERMACHINE for reasonable expenses incurred by SUPERMACHINE in connection with the performance of the Services.
3.3 Unless expressly agreed otherwise in writing, the budget set forth in the "Budget estimation" section of this document above, shall be considered as the minimum fixed price for the Services to be performed by SUPERMACHINE. Such budget is partially based on the fact that SUPERMACHINE is required to plan and allocate its time and resources for the efficient fulfillment of its obligations under this Agreement, which includes possibly refusing new projects which might affect the timely performance under this Agreement. Therefore, the parties agree that:
(a) for the purposes of performance of the Services, the budget included in the "Budget estimation" section of this document above is considered as an estimate and if any additional work is required in order to complete the Deliverables, such work shall be invoiced to the Client in accordance with the hourly rates included in the "Budget estimation" section of this document above and;
(b) in the event that the Client would unilaterally change, limit, withdraw, terminate or cause termination of the (scope of the) Agreement, SUPERMACHINE shall remain entitled to the full budget set forth in the "Budget estimation" section of this document above, regardless of whether actual Services were performed or Deliverables were produced.
3.4 Variances of more than 20% percent of actual versus estimated costs in the budget shall be explained by SUPERMACHINE and approved in writing by Client before the incurring of any such fees or expenses.
3.5 Unless stated otherwise, all rates and prices indicated by SUPERMACHINE are in euros will be deemed exclusive of VAT and other additional taxes.
3.6 SUPERMACHINE shall, on a monthly basis, issue invoices to Client and Client shall pay all invoiced amounts due to SUPERMACHINE within 30 days after the date of such invoice. In the absence of payment on the due date, default interest will be charged by operation of law and without prior notice of default to the amount of the statutory interest rate for payment arrears for commercial transactions on an annual basis (2020: 8%). All costs of recovery shall be borne by the Client, with a minimum of EUR 125.
3.7 If the Client does not agree with SUPERMACHINE's invoice, it shall promptly object in writing, stating reasons, and at the latest until fifteen (15) calendar days after the invoice date. In the absence of such timely objection, the invoice will be deemed accepted and the Client’s payment obligation will be final.
3.8 Failure to pay SUPERMACHINE’s invoice(s) by the Client on the due date shall constitute Client Default and shall allow SUPERMACHINE to invoke the remedies under Article 2.2.
4. INTELLECTUAL PROPERTY
4.1 All copyright, trademark, trade name, patent and other intellectual property rights (hereafter the “IP Rights”) in all Deliverables are owned by SUPERMACHINE unless expressly agreed otherwise in writing.
4.2 In consideration of the fees set out in this Agreement, SUPERMACHINE hereby grants to the Client a royalty-free, worldwide and non-transferable license for the use of the Deliverables in all media relating to the Client’s Products, for the duration of 1 year(s) after delivery to the Client (hereafter the “Initial Licence Term”).
4.3 If the Client wishes to use the Deliverables after expiry of the Initial Licence Term, it shall notify SUPERMACHINE at least two months before expiry of the Initial Term. In such case, the Parties shall negotiate in good faith regarding a reasonable royalty rate.
4.4 The Client shall not use the Deliverables in such a way that prejudice might be caused to SUPERMACHINE's goodwill and reputation. This includes without limitation, altering the content or quality of the Deliverables and using unfinished or non-final versions.
4.5 For the sake of clarity, SUPERMACHINE shall always have the right to use the Deliverables for the purpose of promoting its own business by means including but not limited to a show reel of SUPERMACHINE's commercials, on SUPERMACHINE's own website and for purposes associated with the entry and conduct of advertising industry awards schemes. To that end, the Client agrees that SUPERMACHINE can mention the Client’s trade name(s), trade mark(s) and logo(s).
4.6 The Client shall not be entitled to receive any source files or codes in relation to the Deliverables, unless expressly agreed otherwise in writing and subject to additional compensation.
4.7 Any license right granted under this Section shall be suspended until full payment of all invoices due under this Agreement.
5. CONFIDENTIAL INFORMATION
5.1 The Client acknowledges and agrees that any identifiable and original idea or concept presented by SUPERMACHINE in relation to any promotion or advertising campaign invented or developed by SUPERMACHINE shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without SUPERMACHINE's express prior written consent. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without SUPERMACHINE's express prior written consent.
5.2 The parties agree
(a) not to disclose or otherwise make available to any third party any information that is treated as confidential by the other party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, manufacturers and marketing (collectively, the "Confidential Information") without the prior written consent of the other party; provided, however, that the parties may disclose the Confidential Information to their respective officers, employees, consultants and legal advisors who have a "need to know", who have been apprised of this restriction and who are themselves bound by nondisclosure restrictions at least as restrictive as those set forth in this Section;
(b) to use the Confidential Information as permitted under this Agreement; and
(c) to immediately notify the other party in the event it becomes aware of any loss or disclosure of any Confidential Information.
5.3 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
5.4 The above provisions of this Section shall survive termination of this agreement, however arising.
6. LIMITATION OF LIABILITY
6.1 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
6.2 Nothing in this agreement excludes the liability of SUPERMACHINE:
(a) for death or personal injury caused by the SUPERMACHINE's negligence; or
(b) for fraud or fraudulent misrepresentation or gross negligence.
6.3 Subject to Section 6.1. and Section 6.2 and in view of SUPERMACHINE's performance risk:
(a) SUPERMACHINE shall not be liable whether in tort (including for negligence or breach of statutory duty), contract or otherwise for any loss of profits, loss of business, depletion of goodwill, prejudice to reputation and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) SUPERMACHINE's total aggregate liability in contract, tort (including negligence or breach of statutory duty) or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid by the Client during the 12 months immediately preceding the date on which the claim arose.
7. TERM AND TERMINATION
7.1 The duration of this Agreement is the duration necessary for the performance of the Services.
7.2 Without affecting any other right or remedy available to it, either party shall have the right to terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
(b) the other party breaches this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is curable) fails to cure such breach within thirty (30) days of being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(d) the other party ceases to trade, or becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or extraordinary arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or is unable to pay its debts as they fall due.
7.3 In the event that the Agreement is terminated by SUPERMACHINE in accordance with Section 7.2, any and all licenses granted under this Agreement to the Client shall immediately end.
7.4 Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration.
8. FORCE MAJEURE
8.1 A party shall have no liability to the other party under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, , provided that the other party is notified of such an event and its expected duration.
8.2 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of a party to this Agreement (including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors) (a “Force Majeure Event”).
8.3 The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.
8.4 If the party claiming the Force Majeure Event has complied with Section 8.3, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues and the party will have a reasonable extension of time for performance of its obligations given all the circumstances. As regards the delay or stoppage arising from the Force Majeure Event:
(a) any costs arising from such delay or stoppage shall be borne by the party incurring those costs;
(b) The party claiming the Force Majeure Event shall take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event;
(c) If the Force Majeure Event continues for more than 30 consecutive days, the party which is not claiming the Force Majeure Event may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.
9. HARDSHIP
9.1 A party to a contract is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract.
9.2 Notwithstanding Section 9.1, where a party to a contract proves that:
(a) the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control which it could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and that
(b) it could not reasonably have avoided or overcome the event or its consequences,
the parties are bound, within a reasonable time of the invocation of this Clause, to negotiate alternative contractual terms which reasonably allow for the consequences of the event.
9.3 Where Section 9.2 applies, but where alternative contractual terms which reasonably allow for the consequences of the event are not agreed by the other party to the Agreement as provided in that Section, the party invoking this Section is entitled to termination of the contract.
10. NON-SOLICITATION
The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organization or otherwise and whether directly or indirectly during or for a period of 12 months from the end of the Agreement solicit or entice away or attempt to solicit or entice away (or authorize the taking of any such action by any other person) any executive of the other party who has worked on the Deliverables at any time during the last 12 months of the Agreement.
11. VARIATION
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
12. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. SEVERANCE
14.1 If any provision (or part of a provision) of this agreement is found by any court of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16. ASSIGNMENT
Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other party. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
17. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the laws of Belgium.
18.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of Ghent, Belgium, over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.