Posterscope

Definitions.

The following definitions and rules of interpretation apply to the terms and conditions set out in this document (the “Terms and Conditions”):

(i) “Affiliates” means subsidiaries of Dentsu and Dentsu’s holding company and their respective trading divisions.

(ii) “Agency” means the specialist out of home media buying agency (being a trading division of Dentsu) acting on behalf of Client, as specified in the Media Plan.

(iii) “Agreement” means the contract formed between Client and Agency for the provision of Services to Client, comprising the Media Plan or Statement of Work (as applicable) and the Terms and Conditions.

(iv)“Booking” means a booking placed by Agency with a Media Owner for the purchase of outdoor media time and space pursuant to a Media Plan, together with any printing and/or designing services the Media Owner has agreed to deliver in connection with the same.

(v) “Campaign” means Client’s media campaign, the subject of the Media Plan or Statement of Work and the “Campaign start date” shall be the date the Campaign commences and the “Campaign end date” shall be the last in-charge date for the Campaign.

(vi)“Client” means the client specified in the Media Plan.

(vii)“Dentsu” means Dentsu UK Limited with registered company number 01939690.

(viii)“Liabilities” means all liabilities, expenses and costs including 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 professional costs and expenses).

(ix)“Liveposter Services” means dynamic digital media services (including the creation and management of dynamic posters in digital out of home media).

(x) “Media Expenditure” means (i) the charges for the media inventory set out in a Media Plan; (ii) if applicable, ASBOF levy of 0.1% applied to gross media inventory charges; and/or (iii) if applicable, the charges for printing and/or designing of Client Materials, and/or the posting of Client Materials in the media.

(xi)“Media Owners” means outdoor media owners and other related parties.

(xii)“Media Plan” means any recommendation, strategy, statement of work, purchase order and / or plan agreed between the parties relating to the provision of the Media Services (which may include Production Services).

(xiii)“Media Services” means outdoor media planning and buying services.

(xiv)“Production Services” means printing and/or designing services delivered by Agency in connection with the Media Services and which are not the subject of a Booking.

(xv)“Services” means the (i) Media Services, (ii) Production Services, (iii) Liveposter Services; and (iii) research services, the Agency is appointed to provide.

(xvi)“Statement of Work” means a document describing the Liveposter Services, including deliverables, timeline, the costs and fees relating to the Liveposter Services.

(xvii) Any words following the terms ‘including’ or ‘include’ 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.

2. Agreement.

(i) By approving (i) a Media Plan; (ii) Statement of Work or (iii) clicking on the “I ACCEPT” button on the ECOS platform, Client indicates its acceptance of the contents of the Media Plan or Statement of Work (as applicable) together with these Terms and Conditions in full.

(ii) The Agreement will be effective from the earlier of the date of acceptance referred to above and the Campaign start date, and continue until the Campaign end date when it shall automatically terminate (unless terminated earlier in accordance with clause 9).

3. Appointment.

(i) Agency is appointed by Client to provide the Services on the terms of the Agreement.

(ii) Agency is authorised by Client to act as Client’s agent at law in dealing with Media Owners and placing Bookings and forming contracts with Media Owners, without prior reference to Client. The Client agrees that it shall execute such other agreements and other documentation as Agency may reasonably require to give effect to such appointment.

(iii) Agency warrants that it will perform the Services using professional care and skill.

(iv) Agency shall act as principal at law in providing the Production Services, Liveposter Services and/or research services. As principal, Agency shall place orders in its own name and on its own account on the terms that are agreed by Agency with those third party suppliers, as applicable.

(v) All Bookings will be made in Client’s name, “c/o Agency” and Agency will represent it has the authority to act and is acting on behalf of a disclosed principal. Media Owner will issue its initial invoice for media charges to Agency at Agency’s billing address for payment on behalf of Client in accordance with clause 5.

4. Invoicing and Payment

(i) In consideration for the provision of the Services Agency will be entitled to invoice Client for the following:

(a) Media Expenditure,

(b) Production Expenditure,

(d) Liveposter Fees,

(e) Out of pocket expenses,

(individually and collectively (the “Charges”)) all as more specifically described below. The Charges are payable in Pounds Sterling and exclude VAT, which will be payable by the Client in addition.

(ii) Invoices will be issued to Client on or around the end of each calendar month for Services provided in that calendar month. Agency will use reasonable endeavours to deliver its invoices to Client on or before the 3rd working day (in the United Kingdom) of the calendar month following the month the Charges relate and Client will pay undisputed charges by the 25th day of that month, unless otherwise stated in the invoice.

(iii)All invoices will carry Value Added Tax levied at the rate legislated by the government of the United Kingdom at the time of invoicing.

(iv)In the event that any Charges remain unpaid after the due date set out in clause 4(ii), Agency shall be entitled to charge Client interest on such amounts on a daily basis at the rate of 4% above the base lending rate of the National Westminster Bank Plc from time to time. This clause will only apply to Media Expenditure to the extent that Client has become principally liable to Agency in respect of the same pursuant to clause 5(ii).

(v) Agency may have access to certain pricing discounts, rebates and other financial and non-financial incentives, fees and/or benefits as a result of its relationships and trading volumes with Media Owners and third party suppliers (“Agency Benefits”). Agency Benefits could include, without limitation, preferential rates, payment and/or volume discounts against rate cards or estimated gross prices; volume rebates against Agency’s spend; and media credits, also referred to as ‘unbilled media’. Agency Benefits may have general application across all clients or be client specific.

(vi)Where Agency receives Agency Benefits as a result of or in connection with activities it undertakes pursuant to the Media Plan, Agency is permitted to apply and/or retain such Agency Benefits at its sole discretion, unless otherwise agreed in writing between the parties.

5. Media Expenditure and Production Expenditure

(i)Pursuant to clauses 3(v) and 4(i)(a), Agency will collect payment from Client for Media Expenditure (net of any standard agency commission quoted in the Media Plan) and subject to Agency being in receipt of the same, pay Media Owner the Media Owner’s charges on Client’s behalf. Notwithstanding the aforementioned, Client acknowledges that as the principal party to the Booking, Client shall remain solely liable to Media Owner for payment or non-payment of Media Owner’s charges.

(ii)Without prejudice to clause 5(i) or clause 10(i), in the event Agency arranges for payment (in full or in part) of Media Owner’s charges prior to Agency having received the Media Expenditure from Client, Client shall immediately become principally liable to Agency for payment of the Media Expenditure in accordance with clause 4(ii) of the Agreement. Save for the aforementioned, Client shall remain the principal party to the Booking pursuant to clause 3(ii) and be liable to Media Owner in respect of the same.

(iii) Pursuant to clause 4(i)(b), Client shall be liable to Agency for the sums (comprising costs and fees) invoiced by Agency to Client for the Production Services as set out in the Media Plan (the “Production Expenditure”).

6. Service Fees and Liveposter Fees

(i) Pursuant to clause 4(i)(c), Client shall be liable to Agency for the sums invoiced by Agency to Client for (i) Media Services, as set out in the Media Plan and/or (ii) any research services provided, (the “Service Fees”).

(ii) Pursuant to clause 4(i)(d), Client shall be liable to Agency for the sums (comprising costs and fees) invoiced by Agency to Client for the Liveposter Services as set out in the Statement of Work (the “Liveposter Fees”).

7. Out of pocket expenses

(i) Further to clause 4(i)(e) and subject to the prior written approval of Client, Client will reimburse Agency for costs incurred by Agency during that month, including airfares, accommodation costs, taxi fares, telephone/fax toll costs, courier/mail costs.

(ii)The costs above shall be supported by receipts and the invoice amount must be net of any Agency mark-up and crediting any discounts. If Agency does not obtain that approval, Agency will be solely responsible for payment of those costs and will not be entitled to seek reimbursement from Client.

All reimbursements will be paid in accordance with the invoicing procedures set out above.

8. Client Materials and Intellectual Property Rights

(i) Client shall be solely responsible for the creation and provision of any advertising material and shall ensure that all information, content, logos, graphics or other materials supplied to Agency (“Client Materials”) comply with all applicable laws, regulations and industry codes of practice. In supplying any Client Material to Agency Client warrants on each occasion that the Client Material complies with such laws, regulations and industry codes of practice in all respects and, in addition, the receipt by Agency of the Client Materials and use by Agency and/or its Affiliates in connection with the performance of the Services shall not infringe the intellectual property rights of any third party.

(ii) Save for as expressly set out in the Agreement, all right, title or interest in or to any data or other information or documents or to any Intellectual Property (defined below) subsisting therein which is supplied or otherwise furnished to one party of the Agreement by the other party to the Agreement in connection with the performance of its obligations, shall remain the ownership of the originating party.

(iii) Client hereby grants to Agency a non-exclusive, royalty-free licence to use the Client Materials to the extent necessary to perform the Services, which shall include the right to amend, adapt, use or position the Client Materials or any part thereof for the purposes (including for the purposes of creating hyperlinks to) agreed in the Media Plan and/or Statement of Work or as otherwise agreed in writing (the “Licence”). Agency is granted the right to sub-licence the Licence to its Affiliates and other third parties (including subcontractors) in connection with the performance of the Services. The Licence shall expire upon termination of the Agreement.

(iv) Client hereby waives in favour of Agency and all its licensees, assignees and successors in title all moral rights in the Client Material to which Client may be entitled under the Copyright, Designs and Patents Act 1988 as amended from time to time and under all similar legislation from time to time in force anywhere in the world to the extent necessary for Agency and its Affiliates to exploit the License to the extent necessary to perform the Services.

(v) Save for any Intellectual Property in any Background Material (defined below) and/or any Third Party Material (defined below), the deliverables and materials prepared or developed by Agency specifically for Client under the Agreement:

(a) shall become the property of Client without additional payment; and

(b) Agency hereby irrevocably assigns (by way of future assignment of copyright where necessary) to Client all right, title and interest worldwide in and to the deliverables.

(vi) Agency hereby grants to Client a non-exclusive, royalty-free licence to use the Background Material solely to the extent and for the period necessary for Client to utilise the materials and Services provided under the Agreement.

(vii) Where Agency incorporates Third Party Material into the Services provided under the Agreement, Agency shall, (a) obtain on behalf of Client, at Client’s reasonable cost, and on commercially reasonable terms, such assignment or licence of the Intellectual Property in the Third Party Material as is necessary for Client to utilise the materials and Services under the Agreement; and (b) use reasonable endeavours to ensure that all moral rights in Third Party Material are waived (or where not lawfully possible to waive moral rights, to procure that moral rights are not asserted in respected of the Third Party Material). Agency shall notify Client of any restrictions on usage and any other contractual restrictions (including in respect of moral rights), arising in respect of such Third Party Material.

(viii) For the purposes of this clause 8, the following definitions shall apply:

“Background Material” means any materials created, developed and/or provided by Agency which are: (a) in existence prior to the date of the Agreement; (b) developed independently from Client or not specifically for Client; or (c) identified by Agency or an Affiliate as 'Background Material' prior to or at the time of commencement of such works, which shall in any event include Liveposter Software, Liveposter Template and the platform used to deliver the Liveposter Services.

"Intellectual Property" means copyrights, topography rights, software rights, database rights, design rights, patents, trademarks, service marks or domain names (whether or not any of the same are registered or applications have been filed for registration of any of the same) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the same which may subsist anywhere in the world.

“Liveposter Software” means all of the individual software programs to be provided to Client for use in the Liveposter Template.

“Liveposter Template” means the digital advertising campaign made up of animation sequences to be designed and produced for Client in accordance with the Statement of Work, for operation of the platform owned and operated by Agency.

"Third Party Material" means any materials containing Intellectual Property owned by third parties or licensed to Agency by a third party.

9. Cancellation and Termination

(i) Either party may terminate the Agreement by written notice to the other (a) if the other party breaches any material provision of the Agreement and where remediable, does not remedy that breach within 7 days of being required to do so in writing; or (b) if the other party has a receiver, administrative receiver, administrator, liquidator or provisional liquidator appointed over all or any part of its assets (or their respective equivalents in any other jurisdiction).

(ii) Termination of the Agreement will not affect the parties’ rights and obligations arising prior to the date of termination and, notwithstanding any such termination, Client will remain fully responsible, and liable for all (a) Bookings placed prior to the effective date of termination; and (b) Charges, costs and expenses incurred or earned prior to the effective date of termination. Notwithstanding any other provision in the Agreement or any other applicable agreement to the contrary, in the event either party gives notice of termination, Agency will not be obliged to provide any Services (including placing any Bookings for Client) subsequent to the date of the notice of termination, unless Client advances the funds or pre-pays the Media Expenditure, Production Expenditure, Service Fees and Liveposter Fees (each as applicable the relevant Service).

(iii) In the event that Client requests the cancellation or amendment of any Booking, Agency will use reasonable endeavours to obtain acceptance of such request for Client however Agency cannot guarantee Media Owner’s acceptance of the request.

(iv) Should Client require any cancellation or amendment to a Media Plan which results in cancellation or amendment costs, Client (a) shall be solely liable to the Media Owner for the same pursuant to the terms of the Booking; and (b) shall reimburse Agency for all costs and expenses incurred by Agency (during and after the termination of the Agreement) in connection with the cancelled or amended Media Plan.

(v) Should Client require any cancellation or amendment to a Statement of Work, Client shall be liable to pay Agency the following cancellation fee:

(a) 25% of the Liveposter Fees relating to the cancelled or amended Liveposter Services as set out in the Statement of Work where Agency has received a valid purchase order from Client but Agency or its Affiliate has not yet commenced providing the Liveposter Services; and

(b) 100% of the Liveposter Fees relating to the cancelled or amended Liveposter Services as set out in the Statement of Work where Agency has received a valid purchase order from Client and Agency or its Affiliate has commenced providing the Liveposter Services.

10. Liability

(i) Client will indemnify, defend and hold Agency and Affiliates harmless from any and all claims, suits, actions and Liabilities, brought, made or recovered (including by way of set off) by any person or entity against Agency, Affiliates and/or their employees or directors in connection with Bookings made and/or cancellations or amendments agreed on behalf of Client when acting within the scope of authority under the Agreement.

(ii) Client will defend and hold Agency and Affiliates harmless from any and all claims, suits and actions brought or made by any person or entity against Agency, Affiliates and/or their employees or directors in connection with the use of the Client Materials in accordance with the terms of the Agreement and/or the exploitation of the Licence pursuant to clause 8(iii) (each a “Claim”). Client will indemnify and keep Agency indemnified against all Liabilities suffered or incurred by Agency in connection with each Claim.

(iii) If Client is acting on behalf of its advertiser clients, Client warrants it will comply with the applicable terms and conditions of any contracts entered into with its advertiser clients for placement of outdoor media. Client will indemnify, defend and hold Agency harmless from any and all claims, suits, actions and Liabilities brought, made or recovered by any person or entity against Agency, Affiliates, their employees or directors in respect of any breach of the above Client’s warranty.

(iv) Save for where expressly stated otherwise in the Agreement, neither party will be liable for any indirect, incidental, consequential, special, or exemplary damages, including loss of profits, or loss of business opportunity, even if such damages are foreseeable and whether or not either party has been advised of the possibility thereof.

(v) Agency's total liability, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise arising under or in connection with the Agreement shall be limited to:

(a) in respect of the Media Services, the greater of (x) Service Fees and (y) 5% of Media Expenditure, paid by Client pursuant to the Media Plan the subject of the relevant breach or alleged default in respect of the performance of Media Services arose.

(b) in respect of the research services, the Service Fees paid and payable by Client for the research services the subject of the relevant breach of alleged default.

(c) in respect of the Liveposter Services, the Liveposter Fees paid and payable by Client pursuant to the Statement of Work the subject of the relevant breach or alleged default.

(d) in respect of the Production Services, the Production Expenditure paid and payable by Client for the performance of the Production Services the subject of the relevant breach or alleged default.

(vi) Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

11. Confidentiality and Data Protection

(i) Each party will protect from disclosure the Confidential Information that it receives from the other party. "Confidential Information" includes information that is disclosed in a manner that would reasonably suggest that the information is confidential (including information set out in Media Plans and Statements of Work), but shall exclude any information that: (a) is, or later rightfully becomes, available to the public; (b) was in the recipient's rightful possession prior to receipt of the information from the discloser; (c) is later disclosed to the recipient by a third party who has no obligation of confidentiality; (d) is independently developed by the recipient without the use or benefit of the Confidential Information; or (e) is required to be disclosed under court order or by operation of law.

(ii) In connection with the performance of the Services, Agency may (a) disclose Client as its client; (b) disclose Client as the principal party to each Booking with Media Owners; (c) disclose the Client Materials to Media Owners and third parties solely to the extent necessary to deliver the Services set out in the Media Plan and/or Statement of Work. However, all other details of the Agreement will remain confidential.

(iii) In the event either party will be processing personal data or any part of such personal data, for and/or on behalf of the other party in connection with the Agreement, each party shall comply with their respective obligations under the Data Protection Legislation. In particular and without limitation, in the event a party will be processing personal data or any part of such personal data, for and/or on behalf of the other party in connection with the Agreement the parties shall, prior the processing of that personal data enter into a Data Processing Agreement.

“Applicable Law” means (i) any and all laws, statutes, by-laws, orders, ordinances and court decrees that apply to the performance of the Agreement and/or the processing of personal data, and (ii) the terms and conditions of any applicable approvals, consents, codes of conduct, exemptions, filings, licences, authorities, permits, registrations or waivers issued or granted by, or any binding requirement, instruction, direction or order of, any applicable government department, authority or agency having jurisdiction in respect of that matter.

“Data Processing Agreement” means an agreement between the data controller and data processor or a data processor and a sub-processor which sets out a description of the personal data to be processed, the scope and purpose and duration of the processing permitted in connection with the Agreement, and the parties’ respective obligations.

“Data Protection Legislation” means all Applicable Laws and codes of practice applicable to the processing of personal data, or any part of such personal data, in connection with the Agreement, as in force at the date the personal data is processed, which includes the Data Protection Act 2018 and the GDPR (being Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016), as amended from time to time. ‘Personal data’, ‘data processing’, ‘data controller’ and ‘data subjects’ shall have the meaning given to them in the Data Protection Legislation.

12. Force Majeure

(i) Excluding payment obligations, each party will be excused from performing obligations contained in the Agreement while such performance is prevented by an act of God, fire, flood, earthquake, transportation disruption, war, insurrection, labour dispute, or any other occurrence beyond the reasonable control of that party.

13. Governing Law

(i) This Agreement shall be governed by and construed in accordance with the laws of England and shall .

(ii) This Agreement contains the entire agreement between the parties relating to the Services and supersedes any previous agreements or understanding whether written or oral. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.

(iii) No amendment, modification or waiver shall be deemed to have been made to the Agreement unless made in writing by the party requesting the amendment and subsequently confirmed in writing by the other party and in which case these terms are amended by express reference to them.