MENU TERMS & CONDITIONS Definitions and Interpretation The following words and phrases shall have the following meanings (except where the context otherwise requires): Advertising means all the Client’s advertising for which tmwi performs Services for the Client under this Agreement; Agreement means these Terms and any SOW(s) and Media Plan(s); Client means the company which purchases the Services and Deliverables from tmwi as specified in the Media Plan and/or the SOW Client Materials means any data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to tmwi by the Client; Commencement Date means the date specified in clause 3; Data Protection Legislation means the Data Protection Act 1998 and all other all laws, statutes, regulations and codes relating to data protection, in each case, as amended, revised or replaced from time to time (in particular, by operation of the Directive 2009/136/EC, and the General Data Protection Regulation (EU) 2016/679) and all applicable national implementing legislation and guidelines; Deliverables means the advertising, creative and other materials which are to be provided by tmwi as specified in the SOW, including any tmwi Materials, tmwi Proprietary Materials, and Third Party Materials where applicable; Expenses means any additional cost incurred by tmwi including but not limited to travel as detailed in clauses 5.3 and 7.15; Fees means the fees for the Services and Deliverables as detailed in the SOW and clauses 7.1 and 7.2; Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations; Guarantee Minimum Supply means an agreed minimum total amount (in any 12 month period) of gross expenditure on advertisement space to be paid by the Client via tmwi to a media supplier, or the agreed minimum total amount (in any 12 month period) of advertisement space to be purchased by the Client via tmwi from a media supplier. Intellectual Property Rights means the following rights, wherever in the world enforceable including all reversions and renewals: any patents or patent applications including any applications for same; any trade marks (whether or not registered) including any applications for registration of the same; inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright or design rights (whether registered or unregistered); database rights; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights; Media Costs means all of the costs of Advertising from third parties including but not limited to ad serving; bid management; brand tracking; and/ or analytics management required to assist in the delivery and optimisation of the Advertising; Media Plan means one or more documents approved and signed by the Client from time to time detailing proposed media purchases and costs; Parties means the Client and tmwi; Residuals means information in intangible form, which may be retained by persons performing the Services, including, without limitation, ideas, concepts, know-how, and techniques which do not contain confidential information belonging to the Client; Services means those services tmwi will perform for the Client as agreed between the parties or specified in the SOW and/or Media Plan and these Terms including but not limited to media planning and buying, search engine optimisation, pay per click marketing, creative, performance display, strategic marketing, user experience and CRM management, brand services and positioning; SOW means the statement of work which comprise one or more documents agreed and signed by the Parties from time to time detailing the Services and Deliverables to be provided by tmwi to the Client, which may take the form of a Media Plan; Term means the period from the Commencement Date until the termination of this Agreement; Terms means these tmwi Standard Media Terms and Conditions; Territory means the United Kingdom, unless expressly specified otherwise in the applicable SOW or Media Plan; Third Party Materials means those materials which are either commissioned by tmwi from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables; tmwi means tmwi Limited, a company registered in England and Wales with registration number 4047669 whose registered office is at tmwi House, 7 Shottery Brook Office Park, Timothy’s Bridge Road, Stratford Upon Avon, Warwickshire, CV37 9NR; tmwi Materials means those materials specifically created by tmwi for the Client for the purposes of this Agreement by officers, employees or contractors of tmwi; tmwi Proprietary Materials means content, materials, information, software, methodology, know-how and processes in existence prior to the date on which it is intended to use them in connection with performance under this Agreement and in relation to which the Intellectual Property Rights are owned by tmwi. The SOW and Media Plan(s), together with these Terms, form part of the Agreement and any reference to the Agreement includes the SOW, the Media Plan(s) and these Terms. References to any statute or statutory provision include a reference to that statue or statutory provision as from time to time amended, extended or re-enacted and to any subordinate legislation made from time to time under that provision. Where any provision contained in an SOW or Media Plan conflicts with any provision of these Terms, the following order of precedence shall apply: the Media Plan, the SOW, the Terms. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. Agreement to act as Media Advertising agency The Client appoints tmwi to carry out and tmwi agrees to provide the Services and Deliverables to the Client in the Territory during the Term in accordance with this Agreement. Term of appointment This Agreement shall commence on the date specified in the SOW or on the date that tmwi commences provision of the Services whichever is the sooner and continue until terminated by either party under clause 16, or by either party giving to the other not less than ninety (90) days’ notice in writing. The Services tmwi will perform the Services and deliver the Deliverables detailed in the SOW for the Client in accordance with these Terms. tmwi will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services and Deliverables. tmwi shall use reasonable endeavours to ensure that any key personnel detailed in the SOW are committed to the provision of the Services and/or Deliverables. The Client acknowledges and agrees that it may be necessary for tmwi to replace the personnel involved in providing the Services and Deliverables with alternative personnel with similar levels of seniority and experience. The Client is entitled to object to any new appointee on reasonable grounds. Each of the parties will use its reasonable endeavours to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW. Notwithstanding the foregoing, the parties expressly agree that time is not of the essence of the Agreement unless otherwise agreed in writing and that any failure by either party to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW shall not entitle the affected party to terminate the Agreement. tmwi will act in willing co-operation with other communications suppliers appointed by the Client from time to time when developing communications plans and activities. The Client shall ensure that its other communications suppliers act in willing co-operation with tmwi. The Client will co-operate fully with tmwi and will give tmwi clear briefings and instructions and ensure that all the necessary information provided to tmwi in order to perform its obligations under this Agreement is accurate. tmwi will co-operate fully with the Client and use reasonable care and skill in the performance and delivery of the Services and Deliverables to make the Advertising as successful as is to be expected from a competent digital agency. Approvals and acceptance For the purposes of this Agreement an authorised person of the Client shall mean any director or employee of the Client (each an “Authorised Person”). For the purposes of this Agreement, the Client’s “written approval” shall mean approval signified by: any SOW, Media Plan, letter or purchase order from the Client bearing the signature of an Authorised Person; or an e-mail emanating from the e-mail address of an Authorised Person provided this is in circumstances where time does not permit approval as per sub-clause 5.2.1, and any such written approval under clause 5.2.1 or clause 5.2.2 shall not be unreasonably withheld or delayed. tmwi shall submit to the Client for its specific written approval Media Plans and estimates for Expenses in excess of five hundred pounds (£500) per Expense. The Client’s written approval of Media Plans and estimates will be tmwi’s authority to make reservations and contracts for advertising space, time and other facilities under the terms and conditions required by such third party media owners or suppliers as tmwi chooses to procure advertising space, time and/or other facilities . tmwi will advise the Client immediately of any material changes in the estimated cost of media or any material changes in Media Plans or work in progress previously approved in writing by the Client, unless such costs have been agreed as fixed. Amendments or cancellations: work in progress The Client may request tmwi to cancel or amend any and all SOWs, Media Plans or work in progress. tmwi will take all reasonable steps to comply with any such request provided that tmwi is able to do so within its contractual obligations to media owners, suppliers and other third parties. Any amendment to the Agreement shall be in writing and signed by the parties (or their authorised representatives and shall be recorded as a variation to this Agreement. In the event of any such cancellation or amendment in accordance with sub-clause 6.1, the Client will reimburse and indemnify tmwi for any costs, charges or Expenses incurred by tmwi or to which tmwi is committed. The Client shall also pay for tmwi’s time as stated in the SOW (or otherwise agreed between the parties) and, if not stated in the SOW, at tmwi’s standard rates or pro-rated commission covering the cancelled or amended Services and Deliverables as well as any charges imposed on tmwi by third parties arising from the cancellation or amendment. Terms of payment tmwi Fees (media buying): In consideration of tmwi’s performance of any media buying Services, the Client shall pay tmwi a commission of 15% (“Agreed Commission”) of the gross Media Costs (being the Media Costs after deduction of negotiated discounts but before deduction of standard agency commission). For the avoidance of doubt, the Client’s obligation to pay the Agreed Commission shall be in addition to the Client’s obligation to repay tmwi for Media Costs. tmwi Fees (other services): In consideration of tmwi’s performance of the Services (other than media buying) and the delivery of any related Deliverables, the Client shall pay the Fees set out in and/or referred to in the SOW (or as otherwise agreed in writing with tmwi), which may include commissions agreed with the Client. tmwi will invoice the Client in respect of Agreed Commission and Fees monthly in arrears and the Client will pay the invoice within thirty (30) days of the date of invoice. Media Costs: tmwi will invoice the Client in respect of Media Costs in respect of any media committed as per approved Media Plans since the previous invoice and the Client will pay such invoices within thirty (30) days. In relation to Media Costs, tmwi shall not be required to pay, refund or net off to the Client any media market rebates, volume discounts, early payment discounts, media market credits and/or price differences arising from errors and/or adjustments on third party invoices. Any fixed rates approved by the Client on Media Plans shall be fixed and not reconcilable. Unless stated otherwise in an SOW or Media Plan, any prices quoted for Media Costs on a Media Plan which are not stated as fixed rate will be subject to reconciliation against actual Media Costs on a monthly basis by tmwi. tmwi will then either invoice the Client for any undercharge; or roll forward any overcharge to set off against future Media Costs. Where a surcharge is levied by a supplier of media against tmwi due to late payment which is due to late payment or default by the Client, the Client shall immediately reimburse to tmwi the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount. If late copy charges are levied by a media owner against tmwi as a result of delay or default by the Client, the Client shall immediately reimburse the amount of such late copy charges to tmwi. A levy of 0.1% is payable to the Advertising Standards Board of Finance (ASBOF) in relation to non-broadcast advertising, and to the Broadcast Advertising Standards Board of Finance (BASBOF) in relation to broadcast advertising. The Client shall reimburse to tmwi any such levy, cost or expense imposed by the ASBOF or BASBOF. In the event that tmwi is unable to obtain credit risk insurance in respect of the Client or if tmwi’s credit insurers revise or withdraw cover for the Client, tmwi reserves the right to revise its terms of payment and if necessary ask for payments in advance of media bookings and/or seek suitable guarantees from the Client. If it is not possible to reach an agreement on suitable revised terms tmwi will have the right to terminate this Agreement in accordance with clause 16.3. tmwi reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of five (5) per cent above the base rate from time to time of National Westminster Bank plc, provided that the rate charged to the Client shall not be higher than the maximum rate allowable under applicable law. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the tmwi receives the full outstanding amount together with all accrued interest. In the event of late payment tmwi reserves the right to: withhold further delivery of Services and/or Deliverables under the SOW until payment in full has been received from the Client; and alter the payment terms applicable to this Agreement including without limitation requiring the Client to pay in advance. Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party. tmwi will invoice the Client at cost in respect of Expenses incurred by tmwi in performing the Services and delivering the Deliverables. Unless otherwise stated in the SOW, all Fees and other costs stated are in pounds sterling (GBP£) and exclusive of VAT. Independently from the contractual relationship with the Client, tmwi may provide certain services to media vendors and receive compensation (including but not limited to remuneration and special terms, including free spots, agency function discounts and other cash benefits) for such services from media vendors, which in some circumstances are determined by the total agency volume. Client and tmwi agree that such amounts, all types of remuneration or special terms granted for such services, the extent of which is not generally known at the conclusion of the Agreement with the Client, and which are separate and distinct from the discounts granted for the specific volume of insertions bought by the individual Client, are due to tmwi and may be retained and used by tmwi at its discretion. Media: business terms and selection tmwi enters into all contracts with third parties as principal (unless otherwise specified by the relevant third party) and enters into such contracts with media and third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”) and the Client hereby acknowledges that its right to use or otherwise benefit from any services acquired by tmwi under any Third Party Contracts shall be as set out in the terms and conditions of such Third Party Contracts. The Client hereby indemnifies and shall keep tmwi indemnified against any losses, liabilities, costs or expenses caused by any act or omission of the Client which puts tmwi in breach of any such Third Party Contracts. tmwi shall provide a copy of the relevant Third Party Contract to the Client if requested and to the extent permitted by existing confidentiality provisions with the relevant third party. tmwi shall use reasonable care and skill in the selection and appointment of media supplier(s). tmwi shall not be liable to the Client for any failure to comply with its obligations under this Agreement or for any losses, costs or expenses incurred as a result of a failure by any media supplier or other third party supplier to comply with the relevant Third Party Contract, or if such media supplier or third party enters into liquidation or into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business, or if the Third Party Contract is otherwise terminated. In such an event tmwi will work with the Client to make alternative arrangements for the delivery of any Services affected by such liquidation (or otherwise as applicable). Insurance During the Term, tmwi shall at its discretion take out and maintain professional indemnity insurance to the value of £5m. Upon Client’s request tmwi will provide the Client with evidence that such insurance is in place. Confidential Information Each party undertakes that it shall not at any time during the Term or thereafter disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2. Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10.2; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. The Client acknowledges and agrees that any identifiable and original idea or concept presented by tmwi in relation to any promotion or advertising campaign developed by tmwi shall be acknowledged as being available only for such promotion or campaign whether or not used for such promotion or campaign and shall not be used for any other purposes whatsoever without tmwi’s express prior written approval. 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 tmwi’s prior written approval and agreement being reached regarding appropriate remuneration for tmwi. The Client acknowledges that nothing in this Agreement shall affect tmwi’s right to use as it sees fit any general marketing and/or advertising intelligence and/or Residuals gained by tmwi in the course of its appointment. Nothing in this Agreement shall prohibit tmwi from retaining one copy of the Deliverables for its internal archive. Intellectual Property tmwi acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to tmwi a non-exclusive, royalty-free, right and licence during the Term to use, copy, operate, process, modify and sub-license the Client Materials for the purposes of providing the Services and Deliverables in accordance with this Agreement. The Client shall indemnify tmwi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by tmwi arising out of or in connection with any claim made against tmwi by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights) arising out of or in connection with tmwi’s use of the Client Materials (including any tmwi Materials incorporating Client Materials) or arising out of the nature and use of the Client’s products or services. Subject to clause 10.4, subject to the remaining provisions of this clause 11 and subject to tmwi receiving payment of all Fees attributable to tmwi Materials, tmwi hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in tmwi Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in tmwi Materials. As such, it is the Client’s responsibility to undertake any registrations or clearance searches for trademark, design and/or patent protection. The Client acknowledges that all Intellectual Property Rights in tmwi Proprietary Materials shall be owned by and remain the property of and vested in tmwi. Subject to tmwi receiving payment of the Fees attributable to the tmwi Proprietary Materials licensed under this clause, tmwi hereby grants to the Client a non-exclusive, non-transferrable, perpetual, royalty-free licence to use such tmwi Proprietary Material as are included in the Deliverables. Client shall limit use of and access to the tmwi Materials to such of Client’s employees as are directly involved in the utilisation of the Deliverables internally throughout Client’s business and who are bound to preserve the confidentiality thereof in accordance with clause 10.2. Prior to delivery of the Deliverables, tmwi shall use its reasonable endeavours to obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Material for the purpose set out in the SOW. tmwi shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Material, and the Client hereby indemnifies and keeps tmwi indemnified against any liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by tmwi as result of the Client breaching any such restrictions. tmwi agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in tmwi’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the tmwi Materials. tmwi shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client. Data Privacy In this clause 12, the words “Personal Data”, “Data Controller”, “Data Processor”, “Data Subjects” and “processing” shall have the meaning given to them in the applicable Data Protection Legislation. Client agrees to allow tmwi, its affiliates and sub-contractors, non-exclusive rights to collect, analyse, manipulate, and store non-personal user and customer data on behalf of Client. In particular Client agrees that tmwi and its suppliers are entitled to place cookies, pixel tags, pixel-less techniques or web beacons and related technologies and other relevant tags on, and collect information (including Client’s confidential information) from, the Client’s websites and other relevant sources of data in relation to the provision of the Services. The Client and tmwi acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and tmwi is the Data Processor in respect of any Personal Data. Client represents and warrants that (i) all data provided by or on behalf of Client to tmwi has been collected and processed in compliance with Data Protection Legislation, (ii) it has obtained all rights, consents, authorisations and/or approvals necessary in connection with the use of Personal Data by tmwi for the provision of the Services (including, where applicable, a Data Subject’s consent in relation to profiling), and (iii) it has the legal right and/or has obtained appropriate consents to disclose the Personal Data to tmwi in connection with the Services to be performed under this Agreement. tmwi agrees to process the data and perform the Services hereunder in accordance with all the Data Protection Legislation. In its performance of the Services, tmwi shall, at all times: process Personal Data only on documented instructions from the Client; only process Personal Data in the European Economic Area and shall not transfer, transmit or otherwise store Personal Data outside of the European Economic Area without the prior written consent of the Client; ensure that persons authorised to process Personal Data have committed themselves to confidentiality in respect of Personal Data on terms no less onerous than those set out in the Agreement. take all appropriate, technical and organisational measures required relating to data security (as reasonably directed by the Client from time to time) including to protect and safeguard the Client against unauthorised or unlawful access to Personal Data; not appoint a sub-contractor to process Personal Data without: (a) the express prior written consent of the Client; and (b) imposing the same contractual data protection obligations on such sub-contractor as are in this Agreement; assist the Client upon request and at costs to be agreed between the parties by implementing appropriate technical and organisational measures, including for the fulfilment of the Client’s own obligations to respond to requests for exercising Data Subjects rights under the Data Protection Legislation; assist the Client where reasonable and subject to prior agreement on allocation of associated costs and expenses in ensuring compliance with Data Protection Legislation (where reasonably requested and in consideration for a reasonable fee) including but not limited to assisting with the carrying out of data protection impact assessments and providing all such other information and/or data the Client may reasonably deem necessary in order to comply with its obligations under Data Protection Legislation; at the choice of the Client, immediately delete or return any or all Personal Data to the Client upon any request of the Client after the end of the provision of the Services relating to processing; and make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this clause 12 and its compliance with the Data Protection Legislation and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (including any regulatory bodies or accrediting bodies). The Client agrees to indemnify and keep tmwi indemnified and defend at its own expense tmwi against all costs, claims, damages or expenses incurred by tmwi or for which tmwi may become liable due to any failure by the Client or its employees or agents to comply with any of its obligations under this clause 12. The Client acknowledges that tmwi is reliant on the Client for direction as to the extent to which tmwi is entitled to use and process the Personal Data. Consequently, tmwi will not be liable for any claim brought by a Data Subject arising from any action or omission by tmwi, to the extent that such action or omission resulted directly from the Client’s instructions. Warranties tmwi shall have no liability for any error in the Advertising or delay to any release or publication unless such error or delay is caused by tmwi’s default or negligence. The Client warrants that to the best of its knowledge information and belief all information supplied to tmwi before and during the Term will be accurate and not in any way contrary to any law applicable in any part of the Territory. The Client confirms that it is expressly understood and agreed that in planning and buying the Client’s media activity, tmwi shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to: the number, proportion or type of people likely to be exposed to the Advertising; the number of exposures each person is likely to receive; and the cost of achieving these exposures. The Client acknowledges that the estimates/targets detailed in clause 13.3 are ultimately beyond tmwi’s control. tmwi gives no warranties as to the accuracy of such estimates/targets or as to the figures actually occurring and tmwi shall not be liable to the Client for any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates/targets. Search engine optimisation services will be performed to the best of tmwi’s knowledge and ability but no guarantees or warranties can be given with regard to ranking results. Each party warrants that it has the full power and authority to enter into this Agreement. Guarantee minimum supply tmwi shall not without the Client’s prior written approval agree with any media supplier on the Client’s behalf to a Guarantee Minimum Supply. In the event that the Client gives written approval to tmwi to agree on the Client’s behalf a Guarantee Minimum Supply, the Client agrees without prejudice to the generality of the provisions of clause 8.1 to indemnify and keep indemnified tmwi against all actions, proceedings, costs, damages, demands, expenses, liabilities, penalties, surcharges, fines, losses (including without limitation economic or consequential loss) suffered or to be suffered by tmwi in connection with or arising out of tmwi agreeing to a Guarantee Minimum Supply with a media supplier on the Client’s behalf. Limitation of liability Nothing in this Agreement shall exclude or in any way limit the Parties’ liability for fraud, or for death or personal injury caused by its negligence (or the negligence of its employees, agents or subcontractors) or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to clause 15.1 and excluding any liability arising under any indemnity under this agreement: tmwi’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total net Fees paid to tmwi hereunder during the preceding twelve (12) months; and in no event shall either Party be liable under this Agreement for: any loss of actual or anticipated income or profits, loss of contracts, loss of sales or business, loss of or damage to goodwill; or any special, indirect or consequential loss or damage of any kind; howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known. This Agreement states the full extent of the Parties obligations and liabilities in respect of the Advertising and the performance of the Services and delivery of the Deliverables. The Parties agree that any condition, warranty representation or other term concerning the delivery of the Deliverables and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise (including sections 3 to 5 of the Supply of Goods and Services Act 1982), is excluded to the maximum extent permitted by law. Nothing in the foregoing provisions shall preclude either party obtaining injunctive or other non-financial relief to which it is entitled. Termination Without affecting any other right or remedy available to it, either Party may terminate this Agreement by service of notice in accordance with clause 3. Without affecting any other right or remedy available to it, either party may terminate this Agreement immediately without financial penalty upon giving written notice to the other party if: (a) the other party materially breaches this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 30 days’ of receiving such written notice; or (b) the other party enters into liquidation or if an administrator or receiver is appointed over the whole of any part of the other’s assets or if the other enters into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business. tmwi shall be entitled forthwith to terminate this Agreement by written notice to the Client if tmwi is unable to obtain normal credit insurance in respect of the Client and advance payments or acceptable guarantees have not been made available by the Client within fourteen (14) days after tmwi’s written request under the provisions of clause 7.11. During the period between tmwi’s request for advance payments or suitable guarantees and the earlier of either the Client providing them or the end of the Term, all tmwi’s obligations in relation to the booking of media shall be automatically suspended, as will any other tmwi obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf. The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done, any Fees due and expenditure committed by tmwi until the end of the Term. For avoidance of doubt the Term includes any notice period and payments due include commission on media booked during any notice period but where transmission falls outside such period. Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, tmwi will give the Client all reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media owners, third parties or others for space or time yet to be used and subject to, all rights and claims thereto. If, prior to notice of termination of this Agreement, tmwi has at the request of the Client prepared detailed Media Plans or proposals for future advertising in respect of which tmwi has not been remunerated, the Client shall pay to tmwi fair compensation for work done at tmwi’s standard rates. If the Client wishes to use, after the Term and through another agency, a Media Plan drawn up by tmwi during the Term for the Client’s future use, the Client shall not do so without tmwi’s prior written consent and agreement being reached regarding appropriate remuneration for tmwi. Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive termination, shall remain in full force and effect notwithstanding such termination. Any Third Party Contracts that cannot be cancelled or assigned by tmwi to the Client shall be carried to completion by tmwi, and Client shall remain liable and shall indemnify tmwi for any payments, costs, Expenses or charges incurred by tmwi or to which tmwi is committed (including any charges imposed on tmwi under any Third Party Contract as a result of cancellation). Compliance Each party shall comply with all legislation, regulations, and other rules having equivalent force in the United Kingdom which are applicable to that party in connection with this Agreement. The Client acknowledges its responsibility for compliance with all data and privacy laws and regulations, including but not limited to the requirements to have up to date and accurate privacy and cookie notices on their websites where relevant. tmwi will use reasonable endeavours to ensure that any Service and/or Deliverable complies with all legislation, regulations, and other rules in the United Kingdom relating to the performance of the Services and/or the Deliverables. Unfulfilled assumptions and delays The Client acknowledges that tmwi’s ability to perform the Services or provide the Deliverables specified in the SOW may depend on the fulfilment of assumptions, dependencies and Client responsibilities described in the SOW by the Client. In the event that any unmet dependency, incorrect assumption, Client responsibility or other act or omission of the Client delays or impairs the performance of the Services or provision of the Deliverables, then: tmwi will not be liable for any delay or failure to perform its obligations under this Agreement; without limiting or affecting any other right or remedy available to it, tmwi shall have the right to suspend performance of the Services until the Client remedies the default; tmwi shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from tmwi’s failure or delay to perform any of its obligations under this Agreement; and the Client shall reimburse tmwi on written demand for any costs or losses sustained or incurred by tmwi arising directly or indirectly from the Client’s default, unless the Parties agree otherwise in writing. If at any time tmwi becomes aware that it will not (or is unlikely) to perform the Services or other Deliverables by any date set out in the SOW, tmwi shall notify the Client and provide details of the reasons for it. Where a delay in performing the Services or providing the Deliverables has been directly caused by tmwi, tmwi shall take reasonable steps to eliminate or mitigate the consequences of the delay. General This Agreement constitutes the entire agreement between the parties, and supersedes any and all agreements and terms, whether written or oral, implied or explicit, and may only be amended or modified by a written agreement by both parties. Failure or delay by either party in exercising any rights or remedy under this Agreement shall not operate as a waiver of any such right or remedy. If any provision of this Agreement is held to be unenforceable, such provision shall be amended only to the extent necessary to make it enforceable, and such unenforceability shall not affect other provisions of this Agreement. 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 its reasonable control. Any notice, invoice or other communication shall be served if sent to the other party at its registered office (if a company) or its principal place of business (in any other case) or such other address as agreed in writing between the parties. Neither party shall assign, transfer or otherwise dispose of this Agreement or any rights or duties hereunder without the prior written consent of the other. A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Annual Review The Parties agree to meet annually and within sixty (60) days of the anniversary of the Commencement Date in order to; review their relationship, the Services and Fees the subject of this Agreement and agree to negotiate in good faith any necessary amends effective from the anniversary of the Commencement Date. Should the review and negotiations not be concluded prior to the anniversary of the Commencement Date, the Parties agree that tmwi is entitled to continue invoicing the Client on the terms of the SOW or this Agreement until such new Services and Fees are applicable. For the avoidance of doubt, any changes in the Fees will be backdated to the anniversary of the Commencement Date, always provided that new Fees are not lower than prior year Fees in which case new Fees will then be effective only upon agreement and prospectively for the remainder of the annual period. Changes in Fees payable to tmwi will be related to changes agreed in the SOW or level of services provided by tmwi. Non-solicitation Neither Party shall, during the term of this Agreement and for a period of twelve (12) months from termination, (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of that Party, any employee, worker or independent contractor of that Party who is employed or engaged in providing or receiving any services from/to the other Party within three (3) months prior to the activity prohibited by this clause 21.1; A Party shall not be in breach of clause 20.1 as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or contractors of the other Party. Governing law and jurisdiction This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement. Client Logo Nothing in this Agreement shall prohibit tmwi from including the Client’s name and logo on its public customer lists and disclosing and summarising generally the nature of any work being performed hereunder or under any SOW. The Client hereby grants to tmwi a non-exclusive, royalty-free, perpetual right and licence to use the Client’s name and logo for such purposes. tmwi shall not publish any detailed case studies relating to the Client without the prior written approval of the Client, such approval not to be unreasonably withheld, delayed or conditioned. READY TO POWER YOUR BUSINESS? 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