1.1 In these terms the following expressions shall unless the context otherwise requires have the following meanings:
“ATOM Marketing” means ATOM Marketing Limited;
“Client” means the person to whom Services are to be supplied by ATOM Marketing; “Contact Report” means the report following any communication (whether in a meeting, by telephone or otherwise) between the Parties setting out what was agreed during such communications;
“Contract” means the contract between the Parties for the supply of Goods and Services as more particularly described in the Project;
“Cost Schedule” means a schedule setting out estimates of the costs of main elements or stages of the Project and the Price of the Project;
“Goods” means the goods supplied by ATOM Marketing to the Client;
“Off-the-Peg Goods” means any goods supplied by ATOM Marketing to the Client which are finished products and currently available for retail sale;
“Parties” means ATOM Marketing and the Client;
“Price” means the price of the Project (being the total sum of the cost of the individual stages or elements of the Project) as quoted by ATOM Marketing in the Cost Schedule;
“Project” means the specific Goods and Services agreed between the Parties to be supplied by ATOM Marketing to the Client;
“Promotional Proposals” means ATOM Marketing’s proposed Services submitted to the Client following initial briefing by the Client and prior to agreement of the Project;
“Services” means the promotion and marketing services to be provided by ATOM Marketing to the Client;
“Terms” means the terms and conditions set out herein and in any Contact Report or Cost Schedule relating to the Project.
1.2 Any reference in these Terms to a person shall include natural persons, firms and other unincorporated bodies,
companies and all other legal persons of whatever kind constituted.
1.3 These Terms shall apply to all Contracts to the exclusion of any terms and conditions stipulated or referred to by the Client.
1.4 The provisions of these Terms constitute the entire agreement between the Parties regarding the Contract.
2. Before ATOM Marketing starts work on a Project, ATOM Marketing will submit Promotional Proposals and a Cost Schedule to the Client for approval.
3. Each Project constitutes a separate Contract.
4. In carrying out the Project ATOM Marketing enters into contracts with third party suppliers of goods and/or services. The Client acknowledges that ATOM Marketing does so as principal and not as agent or representative of the Client.
5. After the Client has given an initial briefing to ATOM Marketing, ATOM Marketing may have to carry out development work before Promotional Proposals and a Cost Schedule can be provided. In such cases the Parties will agree the price in advance for such development work.
6. For the avoidance of doubt the costs of the main elements or stages of the Project shown in the Cost Schedule are forecasts and are subject to change during the course of the Project. This information is provided to the Client for guidance only. Subject to clause 9 below notwithstanding any variations in the main elements or stages of the Project, the price is fixed and will be the sum to be invoiced by ATOM Marketing and payable by the Client.
7. ATOM Marketing will supply all Goods and Services within the scope of the Project. Any exceptions must be agreed by the Parties before ATOM Marketing starts the Project and a revised Cost Schedule will be supplied for the Client’s approval.
8. Where Off-the-Peg Goods or Services are supplied as part of the Project, a 15% handling charge will be included in the Price.
9. If the Client requires different or additional Goods or Services once ATOM Marketing has started the Project, ATOM Marketing will supply a revised or additional Cost Schedule reflecting the changes or additions in the Price for approval by the Client.
10. Any estimates, budget outlines, Promotional Proposals, Cost Schedules or other pre-contractual documents shall not constitute an offer by ATOM Marketing to supply Goods or Services or carry out a Project. The Client’s approval of a Cost Schedule will be recorded in a Contact Report. This shall constitute an offer by the Client to engage ATOM Marketing to carry out the Project which offer shall not be binding on ATOM Marketing until ATOM Marketing has given written acceptance of such offer in a Contact Report (“Agreement to Proceed”).
11. Fifty per cent (50%) of the Price and any price for development work falls due with Agreement to Proceed. The remaining 50% will be invoiced according to an invoice schedule agreed between the Parties appropriate to the timing of the Project.
12. The Price is exclusive of any VAT (which will be applied in accordance with the legislation at the tax point date) for which the Client will be additionally liable.
13. Payment of all invoices is strictly within 30 days from the date of the invoice. Failure to comply with ATOM Marketing’s payment terms shall constitute default without reminder. In case of default ATOM Marketing may without prejudice to any other of its rights under these Terms charge interest to accrue on a daily basis at the rate of 3% per month from the date upon which payment falls due to the actual date of payment such interest to be paid monthly. Except where insolvency laws provide otherwise the Client shall not be entitled to withhold or set off payment for Goods or Services for any reason whatsoever.
14. If the Goods are to be manufactured by ATOM Marketing’s supplier in accordance with a specification submitted by the Client, the Client shall indemnify ATOM Marketing all losses, costs and damages whatsoever suffered by ATOM Marketing in connection with any claim by a third party that the manufacture and/or supply of the Goods to such specification infringes the rights of any third party.
15. Risk in any Goods supplied by the Client shall pass to the Client immediately upon delivery thereof to the Client.
16. The Client is deemed to have accepted the Goods both as regards quality and quantity on signing for them upon delivery to the Client.
17. Until payment by the Client in full of the Price and any other monies due to ATOM Marketing in respect of all other Goods or Services supplied or agreed to be sold by ATOM Marketing to the Client (including but without limitation any costs of delivery):-
17.1 the property in the Goods shall remain in ATOM Marketing and the Client shall hold the same as the fiduciary agent of and bailee of ATOM Marketing;
17.2 the Client shall store the Goods separately from other products in a manner which makes them readily identifiable as being the property of ATOM Marketing and shall keep them protected and insured but shall be entitled to resell or use the Goods in the ordinary course of its business.
18. Until such time as property in the Goods has passed to the Client (and provided that the Goods are still in existence and have not been resold) ATOM Marketing shall be entitled at any time to require the Client to deliver up the Goods to ATOM Marketing and if the Client fails to do so forthwith ATOM Marketing or its agent may enter the premises of the Client to take possession of any Goods in which property remains in ATOM Marketing and remove and dispose of them as ATOM Marketing thinks fit. ATOM Marketing shall apply the proceeds of disposal (after deduction of all expenses) in discharge of the amount unpaid by the Client.
19. No Project following Agreement to Proceed may be cancelled by the Client except with the agreement in writing of ATOM Marketing and on terms that the Client shall indemnify ATOM Marketing in full against all loss (including loss of profit), costs, damages, charges (including charges for ATOM Marketing’s time spent on the Project) and expenses incurred by ATOM Marketing up to the date of and as a result of such cancellation.
20. All Projects are checked for compliance with relevant codes of practice. However the ultimate responsibility rests with the Client to obtain detailed legal advice for each Project.
THE CLIENT’S ATTENTION IS SPECIFICALLY DRAWN TO THE FOLLOWING PROVISIONS WHICH DEAL WITH EXCLUSIONS AND LIMITATIONS UPON ATOM MARKETING’S LIABILITY.
21. Subject as expressly provided for herein all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and ATOM Marketing shall have no liability to the Client other than as expressly set out herein.
22. ATOM Marketing warrants that the Goods shall be free from defects and shall conform in all material respects with any specification agreed with the Client.
23. If within 4 weeks from the date of delivery or where delivery is delayed due to any circumstances beyond ATOM Marketing’s reasonable control when ready for despatch, any Goods are found on inspection by the Client to be defective ATOM Marketing shall replace such defective Goods provided they are returned carriage paid to ATOM Marketing as soon as possible after discovery of the defect.
24. Save for death or personal injury caused by ATOM Marketing’s negligence, ATOM Marketing’s total liability to the Buyer under each Contract or arising from ATOM Marketing’s negligence for any single or series of claims arising from the same cause shall not exceed the Price of the Project in question.
25. Except in respect of death or personal injury caused by ATOM Marketing’s negligence, ATOM Marketing shall have no liability to the Client for loss of profit, business, contracts, revenues or anticipated savings or for any special indirect or consequential damage or loss of any nature whatsoever and whether caused by the negligence of ATOM Marketing or its employees or agents which arises out of or in connection with the Contract and/or the use or resale by the Client of the goods, except as may otherwise be expressly provided for in these Terms.
26. ATOM Marketing shall not be liable for any losses (direct, or indirect or consequential) suffered by the Client due to ATOM Marketing’s failure to meet its obligations under the Contract due to any circumstances beyond ATOM Marketing’s reasonable control.
27. For the avoidance of doubt nothing herein contained shall be deemed to exclude or restrict ATOM Marketing’s liability for death or personal injury arising due to ATOM Marketing’s negligence.
28. Anticipated promotion response rates are estimated based on ATOM Marketing’s previous experience in the brand where relevant and ATOM Marketing’s promotional database. The Client acknowledges that due to factors outside ATOM Marketing’s control actual promotion response rates may differ to a greater or lesser degree from the estimated rates provided by ATOM Marketing. ATOM Marketing does not warrant the accuracy of any estimated promotion response rate given to the Client nor does ATOM Marketing accept any liability from any losses whatsoever which the Client may suffer arising from any discrepancy between such estimates and actual promotion response rates.
29. All artwork/proofs must be approved by the Client within the timetable agreed between the Parties. ATOM Marketing accepts no liability for any delay in the execution of the Project if the Client fails to meet this obligation.
30. For the avoidance of doubt copyright in all text or artwork contained in pamphlets, flyers, brochures or other promotional material produced by or acquired by ATOM Marketing in the execution of the Project shall belong to ATOM Marketing unless and until the parties agree that such copyright may be assigned to the Client and an appropriate assignment has been executed.
31. In accepting Promotional Proposals the Client acknowledges and agrees that any identifiable and original idea or concept presented by ATOM Marketing in relation to any Project created or developed by ATOM Marketing shall be acknowledged as being available for such Project and shall not be used for any other purposes whatsoever without ATOM Marketing’s express prior agreement given in writing. Even where no Project 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 ATOM Marketing’s prior written consent.
32. If the Client:-
32.1 shall default in or commit any breach of any of its obligations to ATOM Marketing under these Terms; or
32.2 shall be involved in any legal proceedings in which its solvency is in question; or
32.3 being a company shall present a petition presented for its winding up or convene a meeting to pass a resolution for voluntary winding up or have a receiver appointed over all or any part of its assets or call a meeting of or enter into any composition or arrangement with its creditors or being an individual shall be presented with a bankruptcy petition; or
32.4 shall cease or threaten to cease to trade or if in the opinion of ATOM Marketing serious doubts arise as to the Client’s solvency then in any such case ATOM Marketing shall immediately become entitled (without prejudice to its other claims and rights under the Contract) to suspend further performance of the Contract for such time as it shall in its absolute discretion think fit or (whether or not notice of such a suspension shall have been given) to treat the Contract as wrongfully repudiated by the Client and forthwith terminate the Contract (either with or without notice to the Client) and if any Goods or Services have been delivered but not paid for the price shall become immediately due the payable notwithstanding any previous agreement to the contrary.
33. All Contracts shall be governed by English Law and the English Courts shall have non-exclusive jurisdiction for the hearing of any dispute between the Parties.
34. These terms supercede all previous terms of business of ATOM Marketing.
35. ATOM Marketing shall be entitled to assign or sub-contract all or any of its rights and obligations hereunder. The Client shall not be entitled to assign, transfer, sub-contract or otherwise delegate any of its right or obligations hereunder.
Intellectual Property rights of ATOM Marketing Limited are managed and protected by Mathys & Squire LLP in accordance with the laws of England and Wales.