STANDARD TERMS OF BUSINESS
1. Standard Terms
1.1
In these Standard Terms, capitalised words shall have the meaning given to them in clause 27. These Standard Terms apply to any Services and Deliverables provided by Borkowski and form part of the Agreement between Borkowski and the applicable Client and may be amended from time to time by Borkowski on notice to the Client.
1.2
Defined terms used in these Standard Terms shall have the meaning ascribed to them in the Letter or these Standard terms, as the case may be. In the event of a conflict between these Standard Terms and the Letter, the terms of the Letter shall apply.
1.3
As used in the Letter and in these Standard Terms, the words “include” and “including” shall not have a restrictive meaning.
1.4
References in the Letter and in these Standard Terms to paragraphs, sub-paragraphs and Appendices are references to paragraphs, sub-paragraphs and Appendices to the Letter or these Standard Terms (as the case may be and unless the context otherwise requires).
1.5
In the Letter and in these Standard Terms words importing the singular include the plural and vice versa, words importing a gender shall include all genders and words importing persons shall include unincorporated associations and partnerships and any entity with legal standing.
1.6
Borkowski shall not be obliged to supply any Services specified in the Letter until Borkowski has signed such Letter.
1.7
Upon signature of the Letter by both parties, the terms of the Letter and these Standard Terms shall be binding upon the Parties and shall comprise the Agreement.
2. Provision of the Services
2.1
Subject to the terms and conditions of the Agreement, Borkowski shall from time to time during the Term perform the Services as described in the Letter.
2.2
For the avoidance of doubt, Borkowski shall not be liable under or in connection with the Agreement for any modifications, adaptations or amendments to any Deliverables in whole or in part made by Client or by a third party on the Client’s behalf.
3. Client’s Obligations
3.1
Client shall be responsible for specifying fully and clearly to Borkowski its requirements from the Services including a description of the services required and the dates by which such services or each stage of the proposed services are to commence and finish.
3.2
If the performance of any Services requires the use of any Client Materials then:
(a) Client agrees to provide Borkowski promptly with the Client Materials at no charge; and
(b) the Client Materials, whether used at Client’s premises or elsewhere, shall remain at Client’s risk and Borkowski shall not assume any responsibility or liability for the safety or security of the same.
3.3
Borkowski’s ability to perform its obligations under this Agreement may be dependent on Client or Client’s Associates fulfilling their obligations. To the extent that Client and Client’s Associates do not fulfil their obligations under this Agreement, then (without prejudice to Borkowski’ rights and remedies) Borkowski:
(a) will be relieved of its obligations to Client to the extent that Borkowski is prevented from performing the Services in accordance with this Agreement;
(b) shall not be liable for any costs, charges or losses sustained by Client arising from any such failure to fulfil its obligations under this Agreement; and
(c) reserves the right to charge Client for resources assigned to the Services even if such resources are not utilised.
3.4
Borkowski shall only be obliged to supply Services as expressly set out in a Letter. For the avoidance of doubt, unless otherwise agreed in writing by Borkowski, Client shall be solely responsible for all professional legal advice, legal searches or enquiries (including companies house and trade mark registry services) relating to the Services and notwithstanding any other provision of this Agreement, Borkowski shall have no liability to Client under or in connection with this Agreement for the result or cost of any such enquiries or searches.
4. Approvals and Authority
4.1
Borkowski shall require the Client’s prior written approval in respect of all Deliverables to be issued to the media or to be utilized for production work and shall comply with any request from the Client for any changes to such Deliverables materials, before proceeding to publication and/or production.
4.2
Any reference in the Agreement to the Client's approval shall mean approval by an Authorised Client Approver. Such approval shall be given by one or more of the following means:
(a) any letter or purchase order from the Client bearing the signature of an Authorised Client Approver; or
(b) an e-mail emanating from the individual business e-mail address of an Authorised Client Approver; or
(c) the signature of an Authorised Client Approver on Borkowski’s documentation; or
(d) in circumstances where time does not permit approval by the methods in (a), (b) or (c) above, oral approval given by an Authorised Client Approver.
4.3
Any change of Authorised Client Approver must be notified immediately by the Client in writing to Borkowski.
4.4
Client’s approval of copy, layouts or artwork to be produced in any media including (without limitation) electronic media will be Borkowski’s authority to purchase third party services and/or materials and prepare proofs. Client’s approval of proofs will be Borkowski’s authority to proceed with the production and distribution of the associated Deliverables.
4.5
Client’s approval of estimates or quotations for creative and production costs will be Borkowski’s authority to enter into contracts with third parties for the supply of those items.
5. Amendments to Instructions
5.1
At any time during the term of this Agreement Client may request, or Borkowski may recommend, changes to all or any part of the Services including a request for additional services by delivering a change order to the other party and such further information as that party may reasonably require (a Change Order).
5.2
Upon delivery of the Change Order Borkowski shall then submit to Client as soon as reasonably practicable thereafter, written details in respect of such Change Order specifying whether the change is technically feasible and what changes (if any) will be required to the Services, any agreed delivery date and the Fees (the Scope).
5.3
Within 14 Business Days of receipt of the Scope Client may elect either:
(a) to Approve the Scope in which case this Agreement shall be amended in accordance with the terms of the Scope; or
(b) to withdraw or reject (as applicable) the Change Order in which case this Agreement shall continue in force unchanged.
5.4
Borkowski shall be entitled to charge for the time spent assessing a Change Order delivered by Client and/or preparing the Scope.
6. Fees, Costs and third party services
6.1
Client shall provide Borkowski with a purchase order within 5 Business Days of Borkowski agreeing to provide the relevant Services to Client. For the avoidance of doubt, Borkowski shall not be obliged to begin providing such Services until it has received the purchase order from Client.
6.2
Borkowski will supply the Client with invoices (to include VAT and all other applicable taxes) at the intervals set out in the Letter in respect of all Borkowski’s Fees and Costs incurred in the provision of the Services. The Client shall settle all invoices within seven (7) days of the date of the relevant invoice.
6.3
All payments to be made by Client under this Agreement shall be paid free and clear of any deductions, withholdings for, or on account of, bank charges, tax, set-offs or counterclaims, except any deduction or withholding which is required by law, in which case the sum payable by Client in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, Borkowski receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum it would have received had no such deduction or withholding been made or required to be made.
6.4
All sums stated in this Agreement or in any Letter, quotation or estimate exclude VAT (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.
6.5
Subject to sub-Clause 6.9, where Fees have been calculated by reference to agreed time allocations for particular Services, any Services conducted in excess of such time allocations set out in the applicable Letter, will be agreed in advance by Client and charged to Client.
6.6
If any monies due to Borkowski or any part of the same shall at any time remain unpaid after becoming due and payable then without prejudice to any other rights Borkowski may:
(a) withdraw any or all Services from the Client until payment of such outstanding sums has been made in full; and/or
(b) charge interest on such sums from the due date for payment at the annual rate of 3% above the base lending rate from time to time of NatWest Bank (subject to a minimum aggregate charge of 4%), accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and then may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand; and/or
(c) terminate the applicable Letter and immediately upon written notice to Client.
6.7
Where the Client requests that any Services are supplied in advance of the agreed timetable set out in the applicable Letter, Borkowski shall be entitled to apply an uplift of no less than fifty percent (50%) to Fees that it would otherwise have been entitled to charge in respect of such Services. Further, Borkowski shall be entitled to make an adjustment to any quoted Fees and/or Costs if the cost to Borkowski of performing the Services increases as a result of:
(a) any change to the law or any other reason beyond Borkowski’s reasonable control;
(b) the supply of incorrect, incomplete or inadequate Client Materials by or on behalf of Client; or
(c) in the circumstances described in clause 3.3(c).
6.8
If at any time during the duration of this Agreement, in Borkowski’s reasonable opinion there is a material decline in the creditworthiness or financial standing of Client, or the value of Services supplied to Client increases to such an extent that any then-current security to manage Borkowski's credit risk is in Borkowski’ reasonable opinion insufficient, Borkowski will be entitled to:
(a) require that Client provides to it a letter of credit or other acceptable form of security (including without limitation a bank guarantee or parent company guarantee) in an amount, form and from an entity acceptable to Borkowski (acting reasonably) (Performance Assurance) and, upon receipt of such notice, Client must within 10 Business Days provide to Borkowski the Performance Assurance required; and/or
(b) until such time as the creditworthiness or financial standing of Client shall improve to the reasonable satisfaction of Borkowski, Client will make payments on such terms as Borkowski may specify, including without limitation, making payments in advance by bank transfer for an amount based on Borkowski' estimate of the value of the Services to be provided to Client and any payments made in advance of the invoice date (to include VAT) will be credited to Client against the amount due in the relevant invoice.
6.9
Borkowski reserves the right to be put in funds in full in advance by the Client whenever substantial advance payments or financial commitments are required on the Client’s behalf or where the Client has asked Borkowski to provide Services or Deliverables urgently at earlier times than those agreed with the Client in the applicable Letter. Without limiting the foregoing, Borkowski may, prior to rendering invoices pursuant to clause 6.2, send to the Client a statement of account in respect of Fees and Costs to cover production work and/or costs as required by Borkowski in advance. Borkowski shall be under no obligation to incur third party costs until the Client has paid the full amount shown to be payable to Borkowski on the relevant statement. Borkowski will raise the relevant invoices as the production work is completed.
6.10
Where a surcharge on Costs is levied by a third party supplier/service provider against Borkowski due to late payment and this results directly from late payment by the Client, the Client shall immediately reimburse to Borkowski the amount of such surcharge, together with any accrued interest charged by the third party supplier in respect of the overdue account.
6.11
If, for whatever reason, the sterling equivalent of the cost to Borkowski of any materials or services purchased overseas is less or more than the cost anticipated at the date when such obligations were incurred, Borkowski will charge the Client at the rate of currency exchange which is in operation at that date. The rate of currency exchange in operation at that date is deemed to be the closing mid-point rate in London for the day as subsequently quoted in the next published edition of The Financial Times.
7. Ownership and Custody of Physical Materials
7.1
All Items prepared by Borkowski (excluding design) and paid for by the Client will be the Client's physical property once paid for but all Intellectual Property Rights in such Items shall be governed by clause 8 below. This does not apply to Items embodying solely Existing Material including "stock" photographs obtained from news or photographic agencies for particular advertisements or to photographic or film negatives or to any other medium in which this material may be supplied.
7.2
Borkowski will mark or otherwise identify the Property as being the property of the Client and will be responsible for its safekeeping. Borkowski will not, however, be obliged to recover typesetting, colour separations, printing plates and the like from media owners and suppliers once Borkowski has parted with them.
7.3
If after 12 months from the date on which Property comes into its possession Borkowski gives written notice to the Client that it no longer requires the Property and the Client does not respond within 30 days from the date of the notice, Borkowski shall be entitled to return the Property to the Client by delivery to the Client's last known address or to destroy the Property at its discretion without further notice.
8. Intellectual Property Rights
8.1
Any assignment of Intellectual Property Rights from Borkowski to the Client shall be subject to Borkowski’s receipt of all Fees, Costs and other charges due under this Agreement.
8.2
Notwithstanding 11.1, Borkowski shall:
(a) be entitled to use any outcome of the Services provided to the Client (or any part of the Services process) at any time for the purpose of promoting its own business;
(b) retain all Intellectual Property Rights in any material contained in any presentation in the event of Borkowski’s presentation being unsuccessful; and
(c) shall retain all know how obtained in connection with the Services and nothing in this Agreement shall prevent Borkowski from using any know how, methodologies, ideas or concepts acquired before or during the performance of the Services for any purpose, subject always to Borkowski’ obligations of confidence to Client under Clause 11.
9. Insurance
During the Term, and for at least 3 years following its expiry or termination, each party shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement. Upon request each party will provide the other with reasonable evidence that such insurance is in place.
10. Liability
10.1
Subject to paragraphs 10.2, 10.3 and 10.5 the maximum liability of Borkowski to the Client in contract, tort (including negligence or breach of statutory duty or misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement shall in no circumstances exceed the Fees paid to Borkowski during the 12 months preceding the applicable claim.
10.2
Nothing in this Agreement shall exclude or in any way limit Borkowski’s liability for:
(a) death or personal injury resulting from Borkowski’s own negligence;
(b) fraud (including fraudulent misrepresentation and fraudulent misstatement);
(c) any other liability to the extent the same may not be excluded or limited as a matter of law;
10.3
Subject to clause 10.2 in no event shall Borkowski be liable:
(a) under or in connection with the Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of any benefit, loss of goodwill or reputation, loss of anticipated savings, loss of use or for any indirect or consequential loss or damages of any kind howsoever arising whether caused by breach of contract (including this Agreement), tort (including negligence), breach of any statutory duty or arising in any other way, whether or not such loss or damage is foreseeable, foreseen or known;
(b) for any loss or damage arising from any adaptation or modification to the Deliverables by the Client or any third party; or
(c) for any loss or damage arising from the supply of incorrect, incomplete or inadequate Client Materials by or on behalf of Client.
10.4
Client shall be liable to Borkowski under this Agreement as a principal whether or not Client purports to enter into this Agreement as an agent.
10.5
No action may be commenced against Borkowski or its Associates by Client (whether in contract, tort or otherwise, whether based upon the negligence of Borkowski or its Associates and irrespective of the form and forum) arising out of or in connection with this Agreement more than twenty four (24) months after Client first became aware, or with the exercise of reasonable diligence and enquiry ought reasonably to have become aware, of the facts constituting that cause of action.
10.6
Notwithstanding any other provision of this Agreement, Client accepts full legal responsibility in respect of any Deliverables approved by it for publication and will indemnify Borkowski and its Associates and keep Borkowski and its Associates indemnified in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of any use of such Deliverables by Client.
11. Confidential Information
11.1
The parties acknowledge a duty during or after the provision of the Services not to disclose, except with the other party's prior written permission, the terms of this Agreement and/or any confidential information either concerning the other's business (including finances, rates and charges), its business plans, new concepts and/or designs, customers, clients, suppliers, or associated companies or resulting from studies or surveys commissioned and paid for by the Client.
11.2
The Client acknowledges and agrees that any idea or concept presented by Borkowski to the Client in relation to any public relations or marketing or advertising exercise or campaign which is invented or developed by Borkowski shall be available only for such exercise or campaign and shall not be used for any other purposes whatsoever without Borkowski’s express prior written consent. Even where no exercise 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 Borkowski’s express prior written consent on a case-by-case basis.
11.3
For the avoidance of doubt, the restrictions in this clause 11 shall not prevent:
(a) the disclosure or use of Confidential Information in the proper performance of Borkowski’s duties;
(b) the disclosure of Confidential Information by either party if required by law; and
(c) the disclosure of Confidential Information by either party which has come into the public domain otherwise than through unauthorised disclosure.
11.4
The Client acknowledges that nothing in this Agreement shall restrict Borkowski’s right to use as it sees fit any general marketing or advertising intelligence gained by Borkowski in the course of the provision of the Services.
12. Warranties and Indemnities
12.1
Borkowski warrants it shall discharge its obligations under this Agreement with all reasonable skill and care and in accordance with the standards generally applicable in the industry for similar services to the Services and that it will comply with all applicable Anticorruption Laws.
12.2
The express terms of this Agreement are in lieu of all Borkowski’s warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, including any condition of satisfactory quality or fitness for a particular purpose whether or not any purpose has been notified to Borkowski, all of which are hereby excluded to the fullest extent permitted by law and accordingly shall prevail over any terms and conditions contained, or referred to, in Client’s purchase order, confirmation or order, acceptance of a pitch or quotation.
12.3
Client warrants that:
(a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b) it has all necessary rights and consents for Borkowski and its Associates to use Client Materials to fulfil its obligations to Client under this Agreement;
(c) the Client Materials and Borkowski’s use of the Client Materials will not infringe the Intellectual Property Rights or any other right of a third party;
(d) the Client Materials comply with all applicable laws, regulations and codes of practice, including the DPA 2018;
(e) the Client Materials are accurate and complete in all material respects;
(f) it will comply with all applicable Anticorruption Laws;
(g) it accepts sole legal responsibility in respect of any Deliverables approved by it for publication; and
(h) it will not on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during a period of six months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any executive of Borkowski who has the been involved in the provision of Services to the Client at any time during the last 12 months of the Term.
12.4
Notwithstanding anything else to the contrary in this Agreement, Client shall indemnify Borkowski and its Associates against all claims, damages, costs and expenses (including claims settled by Borkowski at its discretion but after prior discussion with Client) arising from:
(a) the negligence of Client or its Associates;
(b) the performance or non-performance by Client or its Associates of Client's obligations under this Agreement;
(c) any breach by Client or its Associates of Client's warranties under this Agreement.
13. Termination of Agreements
13.1
The Agreement shall have effect on and from the Effective Date and, subject to the terms of this Clause 13, shall continue in full force unless or until terminated by either party in accordance with its terms.
13.2
Each Project shall commence on the Project Commencement Date and shall, subject to earlier termination in accordance with the terms hereof, continue in operation for the Project Term.
13.3
Either party may terminate the Agreement at any time without cause by giving not less than 3 months’ prior written notice to the other.
13.4
In the event of Borkowski’s credit insurers revising or withdrawing cover for Client, Borkowski reserves the right to revise its terms of payment and if necessary seek suitable guarantees from Client. If it is not possible to reach agreement on suitable revised terms Borkowski will have the right to terminate this Agreement immediately upon giving written notice to Client.
13.5
In addition to and without prejudice to any contractual rights of termination set out in this Agreement, either the Client or Borkowski may terminate the Agreement forthwith by notice in writing to the other if the other party:
(a) is in material breach of any of the terms of the Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 (thirty) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
(b) (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a petition for winding up is presented and not discharged within 30 days; or
(c) (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
(d) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(e) has a liquidator, receiver, administrator, administrative receiver or similar officer appointed over any of its assets; or
(f) ceases, or threatens to cease, to carry on business.
13.6
The expiry or termination of this Agreement shall be without prejudice to any rights or remedies available to, or any obligations or liabilities accrued to, either party at the effective date of termination.
13.7
Termination of a Letter in accordance with its terms by either party shall not serve to terminate the Agreement which shall continue in full force and effect. Subject to this Clause 13, so long as a Letter remains in force then the Agreement comprising that Letter and these Standard Terms shall remain in full force and effect.
13.8
The parties' rights and obligations shall continue in full force during the agreed period of notice (if any) and whether or not there is a period of notice, the Client shall pay all Fees, Costs and other sums due to Borkowski in respect of work done and expenditure committed to by Borkowski under this Agreement up to the date of termination.
13.9
If the Client wishes to place Deliverables developed under this Agreement direct or through another agency during the agreed period of notice it may do so provided that it pays Borkowski a sum equivalent to the remuneration which Borkowski would have been entitled to receive had it placed the Deliverables under this Agreement.
13.10
If, prior to notice of termination of this Agreement, Borkowski has at the request of the Client prepared detailed plans or proposals for future public relations work in respect of which Borkowski has not been remunerated, Borkowski shall be entitled to receive from the Client payment on a fair compensation for work done basis based on Borkowski’s then applicable hourly rates excluding VAT plus any remuneration which Borkowski may otherwise receive from the Client in respect of its work under this Agreement during the period of notice.
13.11
If the Client wishes to use, after the expiry or termination of the Term, and through another agency, a media or public relations plan drawn up by Borkowski during the Term for the Client's future use, the Client shall not do so without Borkowski’s prior written consent and agreement being reached regarding appropriate remuneration for Borkowski.
14. Survival of Obligations on Termination of Agreements
All relevant paragraphs of these Standard Terms shall survive and continue to have effect notwithstanding the termination of this Agreement including: 6 (Fees, Costs and third party services); 7 (Ownership and Custody of Physical Materials), 8 (Intellectual Property Rights), 9 (Insurance) 10 (Liability) 11 (Confidential Information), 12 (Warranties and Indemnities), 14 (this paragraph), 15 (Data Protection & Privacy), 22 (Non-Solicitation), 24 (Notices), 25 (Applicable Law) and 26 (General).
15. Data Protection and Privacy
15.1
Each party warrants that they will comply with their respective obligations under Data Protection Legislation.
15.2
The Client warrants and represents that all instructions provided to Borkowski in relation to the Processing of Personal Data as part of the Services are lawful and that such instructions shall as a minimum include the:
(a) nature and purpose of the Processing of the Personal Data;
(b) types of Personal Data to be Processed; and
(c) categories of Data Subjects to whom the Personal Data relates.
15.3
The Client acknowledges that as Data Controller it is solely responsible for determining the lawful basis of Processing upon which it shall rely in providing instructions to Borkowski to process Personal Data.
15.4
Where Borkowski processes Personal Data supplied by the Client and/or collected by Borkowski as part of the Services, Borkowski shall:
(a) process such Personal Data as a Data Processor;
(b) process such Personal Data:
(i) only to the extent necessary for the provision of the Services as required by this Agreement during the Term (the Scope of Processing); and
(ii) only in accordance with the Client’s documented instructions;
(c) assist the Client in providing Data Subject access and allowing Data Subjects to exercise their rights under the GDPR;
(d) take all security measures required in accordance with Data Protection Legislation and at the request of the Client provide a written description of, and rationale for, the technical and organisational measures implemented, or to be implemented, to protect the Personal Data against unauthorised or unlawful Processing and accidental loss;
(e) detect and report Personal Data breaches without undue delay;
(f) inform the Client where it believes that the Client’s instructions for Processing would cause a breach of Data Protection Legislation;
(g) assist the Client in conducting privacy impact assessments where required under Data Protection Legislation (subject to the payment of Borkowski’s reasonable costs in connection with any such assessment provided such costs are approved in advance);
(h) upon the Client’s reasonable request, at a minimum of 14 days’ notice, provide the Client with any documentation or records (which may be redacted to remove confidential commercial information) which will enable the Client to verify and monitor Borkowski’s compliance with its GDPR obligations in respect of Data Processing Services provided to the Client;
(i) promptly, upon request at any time from the Client, amend, correct, transfer and/or delete Personal Data and/or block Personal Data from further processing and/or use, provided that, promptly upon notification by Borkowski to the Client that a request is manifestly unfounded or excessive (including because of their repetitive character), the Parties shall enter into discussions in good faith with a view to agreeing on an alternative course of action, which may include;
(i) Borkowski charging a reasonable fee to carry out the request taking into account the administrative costs of providing the information or communication or taking the action requested; or
(ii) withdrawal of the Client’s request;
(j) on completion or early termination for whatever reason of the Services return or (at the Client’s direction) destroy all Personal Data according to industry data destruction standards and provide written confirmation of such destruction once complete (Borkowski may retain a copy of the relevant Personal Data only to the extent it is obliged to do so Data Protection Law);
(k) not use any Sub-Processor without the Client’s prior written consent, it being acknowledged that sub-contractors and affiliates of Borkowski are hereby approved. Where the Client gives its consent to sub-processing, Borkowski shall ensure that it puts in place a written contract with any Sub-Processor which contains obligations on that Sub-Processor equivalent to those in this clause 15 and shall ensure that the Sub-Processor complies with those obligations;
(l) any transfer of Personal Data outside the UK shall, unless otherwise agreed between Borkowski and the Client, be subject to undertakings from the party or parties processing such Personal data outside the UK that such Personal Data will be processed in accordance with standards that would otherwise have applied had such Personal data been subject to the Data Protection Legislation applicable in the UK;
(m) assist the Client to comply with any applicable obligations under Data Protection Legislation (subject to the payment of Borkowski’ reasonable costs in connection with any such assistance provided such costs are approved in advance); and
(n) exercise reasonable care in the selection of its employees and contractors who will have access to such Personal Data and ensure that they have undergone adequate training in the care, protection and handling of Personal Data and are aware of their and Borkowski’ responsibilities in relation to the Processing of Personal Data under this agreement and Data Protection Legislation and will treat such personal data as confidential information.
16. Assignment
The Client shall not be entitled to assign its rights and/or obligations under the Agreement without the express prior written consent of Borkowski and in the event of any such assignment the Client shall remain primarily liable to Borkowski for the performance of its obligations thereunder. Borkowski shall be entitled to benefit of the Agreement to any member of its Group and to sub-contract its performance of the Services without the approval of Client. This shall not relieve Borkowski from any liability or obligation under the Agreement.
17. Waiver
No whole or partial waiver of any breach of the terms of the Agreement shall be held to be a waiver of any other or any subsequent breach. The whole or partial failure of either the Client or Borkowski to enforce at any time the provisions of the Agreement shall in no way be construed to be a waiver of such provisions nor shall in any way affect the validity of the Agreement or any part of the same or the right of either party to enforce subsequently each and every provision of the same.
21. Force Majeure
If, due to war, strike, industrial action short of a strike, import or export embargo, lockout, accident, fire, blockade, flood, natural catastrophe or other circumstance over which Borkowski has no control Borkowski fails to perform any of its obligations to the Client, Borkowski shall not be held responsible for any loss or damage which may be incurred as a result of such failure. If the event of force majeure continues for longer than 1 (one) month Borkowski shall have the option of terminating the provision of the Services immediately without further liability other than such liabilities as have already accrued at the date of termination.
22. Non-Solicitation
Client agrees that neither on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of 6 months from the end of the Term of the Agreement solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any Associate of Borkowski.
23. Severance
If any part of the Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of the Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
24. Notices
Any notice required or permitted under the terms of the Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and will either be delivered in person, sent by registered mail (properly posted and fully prepaid in an envelope properly addressed) or sent by email to the respective Parties at the addresses specified in the Agreement’s Letter of Engagement.
25. Applicable Law
The Agreement shall be construed in accordance with and governed by the laws of England and Wales and both parties hereby irrevocably agree that the English Courts shall have non-exclusive jurisdiction to resolve any dispute of whatever nature arising from the Agreement or any alleged breach of the Agreement.
26. General
26.1
The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, in relation to the same. Each of the parties acknowledges and agrees that:
(a) in entering into the Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement; and
(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in the Agreement.
26.2
Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
26.3
No modification or variation of the Agreement (or any document entered into pursuant to or in connection with the Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to the Agreement. The rights and obligations of the parties under the Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
27. Definitions
In the Agreement (as defined below) the following words have the following meanings:
Agreement: the agreement between Borkowski and the Client as set out in each Letter and these Standard Terms;
Anticorruption Laws: all applicable anticorruption laws and regulations, including without limitation the U.K. Bribery Act, the anticorruption laws of England & Wales and applicable laws dealing with bribery, extortion and kickbacks;
Associates: in respect of a Party, that Party's employees, officers, agents, sub-contractors or authorised representatives and “Associate” shall be construed accordingly;
Authorised Client Approver: any person specified by the Client to Borkowski in the applicable Letter as having the requisite power to contractually bind the Client in all matters relating to this Agreement;
Business Day: any day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client: the client identified in the applicable Letter;
Client Equipment: Client's own compatible computer system being all such hardware, Client Software and/or communications lines (including any public communication lines) required for each Project;
Client Materials: the Data, Client Equipment, documents and any other materials or information provided to Borkowski by, or on behalf of, Client or used by Client in connection with the provision of the Services including as may be described in the applicable Letter;
Client Software: computer programmes in object code and/or source code owned by or licensed to the Client (but excluding the Software);
Confidential Information: the confidential information described in clause 11.1;
Costs: any or all third party costs, fees, expenses and disbursements incurred by Borkowski or on its behalf in the course of providing the Services for the Client;
Data: Client's computer data (in machine-readable form);
Data Protection Legislation: all applicable Law relating to the Processing of Personal Data and privacy including without limitation (i) the General Data Protection Regulation (EU) 2016/679 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (the GDPR); (ii) the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003;
Deliverables: all Materials produced by Borkowski or on its behalf for the Client, as set out in the applicable Letter;
Effective Date: the earlier of the first Project Commencement Date or the date on which the Services commenced for the first Project;
Existing Material: any Material owned by a third party and desired to be used in and/or incorporated in the Deliverables;
Fees: the fees payable to Borkowski for Borkowski’s work in providing the Services for the Client as may be more particularly set out in the Letter and excluding any Costs;
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company, and each company in a Group is a member of the Group;
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, performer’s rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
Item: a physical item embodying Deliverables produced by Borkowski for the Client;
Letter: a letter of engagement between the Client and Borkowski to which these Terms and Conditions are attached;
Materials: press releases, copy, artwork, drawings and designs, models, storyboards, scripts, photographs, films, characters, music, performances, books, audio materials, software, data, databases, websites, website content, advertising, marketing, publicity and promotional matter and other materials in any media (including in electronic form or otherwise);
Parties: the Client and Borkowski and ‘Party’ shall mean either of them;
Personal Data, Data Subject, Data Processor, Data Controller, Processing, Processed and Sub-Processor: shall have the meanings ascribed to them in Data Protection Law;
Property: any and all physical materials entrusted to Borkowski by the Client;
Project: any project, production, event or activity in respect of which Borkowski is engaged by the Client to provide its Services as may be more particularly described in the Letter;
Project Commencement Date: the commencement date of each Project as set out in the corresponding Letter;
Project Term: the period commencing on the Project Commencement Date during which the Services for each Project will be provided as specified in the applicable Letter;
Services: the services which Borkowski provides to the Client as may be more particularly set out in the applicable Letter;
Software: computer programs in object code owned by or licensed to Borkowski and used in the provision of the Services;
Standard Terms: these standard terms;
Letter: the Letter in the form set out in Appendix 1 to the Letter of Engagement as agreed and signed by Borkowski and the Client, containing a description of the of the Services and the applicable Project;
Term: the period commencing on the Effective Date and ending on the earlier of the termination date of the Agreement and the expiry of the last Project Term