INSERTION ORDER TERMS OF BUSINESS

1.   Status of this Agreement

a.   These Terms of Business will prevail, unless specifically accepted by an authorised representative of The 7th Chamber in writing, over any inconsistent terms or conditions contained in the Insertion Order, your purchase order, quotation, confirmation of order, specification, invoice, or implied by law, trade custom, practice or course of dealing.

b.   Defined terms set out in the Insertion Order will have the same meaning in these Terms of Business.

 

2.   The Services

a.   The 7th Chamber will execute the campaign set out in the Insertion Order, by: (i) delivering the Services identified in the Insertion Order; and, (ii) to achieve the Deliverables if stated as guaranteed in the Insertion Order (together, the “Services”).

b.   The 7th Chamber will use reasonable efforts to deliver the Services in accordance with the Campaign Flight Dates set out in the Insertion Order (if any).  The Scheduled Live Date is an estimate, and any other Campaign Flight Dates stated in the Insertion Order are subject to revision if any prior agreed date, including the Scheduled Live Date, is changed.

c.   The delivery of the Services is subject to the provision by the Client on a timely basis (and always in accordance with any agreed timeframes) of any Client Collateral as set out in the Insertion Order, and any other information, materials or support which is reasonably necessary for The 7th Chamber to fulfil the Services for the relevant campaign.  If such provision is not so achieved, The 7th Chamber may, at its option, charge the Client its reasonable additional fees and / or delay any relevant timeframe as necessary to reflect the applicable delay.

d.   It is important that any creative material received is the same as that described in prior correspondence. If upon receipt, The 7th Chamber considers (in its sole opinion) the creative material does not match the previous description, The 7th Chamber may revise the campaign Deliverables or Campaign Flight Dates set out in the Insertion Order.

e.   The 7th Chamber will take reasonable steps to ensure that its business partners who distribute the campaign materials, or which may provide services to The 7th Chamber in respect of the Services, will comply with applicable statutory provisions and regulations, and any other relevant legislation including but not limited to the British Code of Advertising, Sales Promotion and Direct Marketing.

f.    If requested, the 7th Chamber will use reasonable efforts to obtain prior approval of the Client to each business partner through which the Campaign Collateral is published.

 

3.   Acceptance of Campaigns

a.   All changes to a campaign, are subject to The 7th Chamber's approval in writing, such approval not to be unreasonably withheld or delayed.

b.   The 7th Chamber may omit or suspend a campaign at any time for good reason, in which case no claim on the part of the Client, including its clients (if applicable), for damages or breach of contract will arise. Should such an omission or suspension be due to the act or default of the Client, its sub-contractors, its clients, its agents, then the campaign will be paid for in full not withstanding that the campaign has not occurred or completed. Such an omission or suspension will be notified to the Client as soon as possible.

c.   If The 7th Chamber considers it necessary to modify the campaign or alter the Campaign Flight Dates the Client will have the right to cancel if the alterations requested are not acceptable unless such changes are due to an emergency or circumstances beyond The 7th Chamber's control (for example, where acting in the best interests of the Client’s reputation based on current events at the time, where materials are delivered late by the Client, or where important media channels are not available).

d.   Every care is taken to avoid mistakes but The 7th Chamber cannot accept liability for any errors due to third parties, subcontractors, or inaccurate instructions or copy.

 

4.   Payment

a.   The Client shall pay the Gross Budget, any other charges, and third party expenses as set out in the Insertion Order (the “Charges”).

b.   If payment is not received by the due date, then without limiting its other remedies, The 7th Chamber may charge, and the Client will pay, interest on all overdue amounts at the rate of 8% per annum above Barclays Bank PLC’s base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client will pay the interest together with the overdue amount.  In addition, The 7th Chamber may charge for any third party charges and expenses incurred in order to secure payment of the outstanding debt.

c.   If the Client, for the purposes of this Insertion Order, is acting on behalf of a third party, and neither the Client or the third party has made payment to The 7th Chamber when due, then the Client confirms that, and will procure that the third party provides that The 7th Chamber will have the right to approach that the third party to request payment directly to The 7th Chamber.  The foregoing will not relieve the Client of its obligation to pay any amounts due, and The 7th Chamber may pursue the Client or the applicable third party, or both.

d.   Campaign budgets, rates, and third party charges, are subject to revision at any time and orders are accepted on the condition that the budgets, rates or charges only relate to this Insertion Order.

e.   The Client shall reimburse The 7th Chamber for reasonable expenses actually incurred in respect of the Services.

f.    All amounts payable are exclusive of value added tax (or equivalent tax or duty), which will be payable in addition (if applicable).

 

5.   Client Responsibilities

a.   The Client warrants, for itself and for any third party client, Affiliate or subcontractor of the Client, that any Campaign Collateral, or other material provided to The 7th Chamber for the purposes of providing the Services:

i.    does not breach any applicable legal requirements (including, without limitation, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies);

ii.    does not infringe any intellectual property rights or proprietary rights of any third party; and,

iii.    will not be defamatory, libellous, obscene or otherwise offensive, each, in any jurisdiction in which such material may be published or accessed.

b.   The Client will indemnify The 7th Chamber, its subcontractors, its Affiliates and their subcontractors (together the “Indemnified Parties”) 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 the Indemnified Parties (“Losses”) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Indemnified Parties by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by the Client, or its third party client, of clause 5.a.

c.   If either party becomes aware that there is risk that any campaign or Deliverable is not in compliance with clause 5.a, each shall promptly notify the other, and, the relevant party will make any modifications which may be necessary to remedy that defect in the Deliverables or Campaign Materials. Any modifications shall be at the Client's cost.

d.  If for any reason the Client delays the Scheduled Live Date by 90 days or more The 7th Chamber will be authorised to revise any deliverables provided to the client whether guaranteed or otherwise. The 7th Chamber at this point will also be authorised to charge the client an initial 25% of the Gross Budget for work incurred to date.

e. The 7th Chamber services may include using a number of influencers and Ambassadors to create or deploy content on behalf of the Client. The Client warrants that for a period of 24 months following the delivery of the Campaign they will not contract with directly or via a third party any of the Influencers or Ambassadors used in this Campaign. Any such contractual activities will either take place via The 7th Chamber or, if agreed in advance with The 7th Chamber, the Client will pay The 7th Chamber an introduction fee equating to 15% of all monies payable to the contracted Influencer or Ambassador over the 24 months period. 

 

6.   Intellectual Property

a.   Each party reserves all rights in its information or materials provided to the other in respect of this Agreement. The disclosure of information or materials by one party does not give the other party or any other person any licence or other right in respect of any such information or materials beyond the rights expressly set out in this Agreement.

b.   The Client grants The 7th Chamber, and its business partners, used for the purpose of providing the Services, a non-exclusive, non-transferable, royalty-free licence to use the Client's Creative Collateral, including without limitation, any applicable trademarks contained in such collateral, solely to the extent necessary to enable The 7th Chamber to provide the Services.

 

7.   Confidentiality

Subject to the terms of any Non-disclosure Agreement agreed between the parties in relation to the Services, which will take precedence over this clause, the following will apply:

a.   Each party undertakes, in relation to any information received from the disclosing party (whether before or during the term of this Agreement), except as may be permitted under clause 7.e, 10.a, or permitted by the disclosing party in writing: (i) to keep it confidential; (ii) only to use it for the purposes of the Services, and only in accordance with the terms of this Agreement; (iii) not publish or disclose it to any third party; and, (iv) not copy, reduce to writing or otherwise record the information except as strictly necessary for the purposes of the Services. Any such copies, reductions to writing and records shall be the property of the disclosing party.  In each case.

b.   In this Agreement, “Representatives” means, in relation to the relevant party: (i) its officers and employees and those of its Affiliates; (ii) its professional advisers or consultants who are engaged to advise that party in connection with the Services; (iii) its contractors and sub-contractors engaged by that party in connection with the Services; and (iv) any other person to whom the other party agrees in writing that information may be disclosed in connection with the Purpose.

c.   The receiving party will restrict disclosure of the confidential information to such of its Representatives as have a legitimate need to know or see the same for the purposes of the Services. The receiving party will ensure that such Representatives to whom disclosure is made are subject to equivalent obligations of confidentiality as bind the receiving party.

d.   The receiving party shall apply security measures no less stringent than the measures which it would apply to protect its own like information (but in any event no less than a reasonable degree of care) to prevent loss of, or unauthorised disclosure, access, or use of the confidential information.

e.   The obligations of confidentiality in this Agreement shall not apply to any information which: (i) is generally available to the public other than as a direct or indirect result of the information being disclosed in breach of this Agreement; (ii) was available to the receiving party on a non-confidential basis prior to disclosure; (iii) was, is, or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not under any confidentiality obligation in respect of that information; (iv) was lawfully in the possession of the receiving party before the information was disclosed; (v) is developed by or for the receiving party independently of the information disclosed; or (vii) is disclosed by the receiving party in compliance with the legal requirements of a competent legal or other regulatory authority, provided the disclosing party has been notified by the receiving party of the intended disclosure prior to taking place; or, (viii) the parties agree in writing that the information is not confidential.

 

8.   Liability

a.   Nothing in this Agreement excludes or limits the liability of The 7th Chamber for:

i.    death or personal injury caused by The 7th Chamber’s negligence;

ii.    fraud or fraudulent misrepresentation; or,

iii.    any other liability which cannot lawfully be excluded or limited.

b.   Subject to clause 8.a:

i.    The 7th Chamber will not be liable (including any liability for the acts or omissions of its officers, employees, agents and subcontractors) whether in contract, tort (including negligence), breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, loss or corruption of data, depletion of goodwill or similar losses, increased costs, failure to achieve anticipated savings, or pure economic loss, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and,

ii.    The 7th Chamber’s total aggregate liability in contract, tort (including negligence) or breach of statutory duty, misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement will be limited to the Charges paid for the applicable Services as set out in the Insertion Order.

c.   All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

 

9.   Termination

a.   The Client may terminate, for its own convenience, all or part of this Agreement by providing written notice to The 7th Chamber. If such termination is on less than 30 days prior notice:

i.    The 7th Chamber may choose to charge the client the higher of: (A) 25% of the Gross Budget detailed in the Insertion Order for the relevant campaign; and, (B) a percentage of the Gross Budget equal to the percentage of the campaign, estimated or guaranteed, that had been delivered at the time of termination.

ii.    if The 7th Chamber has been commissioned to design or develop any creative The 7th Chamber may choose to charge the Client for the charges which have already been incurred in relation to such terminated activity.

b.   The 7th Chamber may terminate this Agreement for its own convenience by providing 30 days prior written notice to the Client.

c.   Without prejudice to any rights that the parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

i.    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 30 days after being notified in writing to make such payment;

ii.    the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

iii.    the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or

iv.    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

d.   Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

e.   On termination of this Agreement for any reason:

i.    The 7th Chamber shall immediately cease provision of any services, or will cancel any orders not yet fulfilled;

ii.    except in the case of termination under clause 9.a, the Client shall pay to The 7th Chamber the applicable fees and expenses payable for the Services which have been completed and provided; and,

iii.    if requested in writing, each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party.

 

10.           General

a.   The 7th Chamber may use details of the campaign in any future marketing or promotional material, including reference to the Client or the applicable third party client of the Client, and the subject of the campaign.

b.   In this Agreement, “Affiliate” means in respect of the relevant party, any company or other body corporate which is a Subsidiary or Holding Company of that party from time to time, or a Subsidiary of that Holding Company from time to time.  Holding Company and Subsidiary Company have the meanings attributed to them in Sections 1159 of the Companies Act 2006 (as amended or replaced from time to time).

c.   If the Client provides any personal data to The 7th Chamber, the Client does so as data controller, and The 7th Chamber will be the data processor.  The 7th Chamber will process such personal data in accordance with the instructions of the Client. The Client warrants that it has all relevant consents to provide such personal data to The 7th Chamber, and to each third party engaged in respect of the campaign, as necessary for the provision of the Services.  The terms “personal data”, “data controller”, “data processor” and “process” in this clause will have the meanings provided in the Data Protection Act 1998 (as amended, superseded or replaced from time to time).

d.   The 7th Chamber will use reasonable efforts to inform the Client of any Cookie it places, or intends to place, on an end user’s equipment. This information will include the name of the Cookie and its purpose. The 7th Chamber will periodically audit the Cookies it places and use reasonable efforts to procure the removal of any Cookie that is no longer required in provision of the Services. For the purposes of this clause, Cookie means a file downloaded on to a user’s equipment for the purposes of recognising a user’s equipment and/or similar technologies for storing information on a user’s equipment, including but not limited to, flash cookies, web beacons or bugs.

e.   Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (except in respect of the Client’s obligations to pay any amount) if such delay or failure result from events, circumstances or causes beyond its reasonable control.

f.    This Agreement is personal to the Client, and no other party may rely on its terms.

g.   These Terms of Business, the Key Terms, the Purchase Order, 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.

h.   Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

i.    Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of the other party.

j.    A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, except such Indemnified Parties may enforce the terms of clause 5.b. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.  The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

k.    The parties may provide notices required pursuant to this Agreement by email (to such address as notified by one party to the other from time to time), except where such notices relate to court or other legal proceedings.

l.    This Agreement will be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.