Terms & Conditions

72Point Standard Terms & Conditions

  1. Definitions & Interpretation

 

  • The following terms and expressions shall apply to this Contract:

“Business Day”: a day other than a Saturday, Sunday or public holiday in England, when banks are generally open for business.

“Charges”: the charges payable by the Client for the provision of the Services, as set out in the Order Form.

“Contract”: the contract between the Client and 72Point for the provision of the Services, comprising the Contract Definition Form (including the Special Terms, if any), the Standard Terms, the Proposal, and the Client Order.

“Control”: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“Client Material(s)”: all information, media, data, photographs, video, infographics, and any other materials supplied by the Client to 72Point.

“Client Order”: a purchase order, Proposal/SOW, or other communication specifying the Services to be provided by 72Point and sent by the Client to 72Point.

“Deliverables”: all articles, captions, copy, infographics, layouts, media (including photographs and video), quizzes, releases, scripts and other documents and materials developed by 72Point or its personnel as part of or in relation to the Services in any form and any Key Deliverables set out in the Order Form.

“Ideas”: any ideas concepts strategies and formats for campaigns or other initiatives developed by 72Point as set out in a Proposal/SOW or as otherwise suggested or provided by 72Point (including OnePoll) to the Client (whether or not in the course of providing the Services).

“Intellectual Property Rights”/”IPR”: means all patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“OnePoll”: a trading style of 72Point for undertaking research.

“Proposal/SOW”: means a proposal or statement of work document (whether hard copy or soft copy and can include emails), setting out the scope of the Services to be provided by 72Point.

“Services”: the services, including any Deliverables, to be provided by 72Point pursuant to the Contract.

“Services Start Date”: the day on which 72Point is to start provision of the Services, as set out in the Order Form (or, if unspecified, the date on which 72Point starts provision of the Services).

“Standard Terms”: these terms and conditions.

  • A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
  • Any words following the terms including, include 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.
  • A reference to writing or written includes email but not fax.

 

  1. Commencement and duration

 

  • The Contract shall commence upon acceptance by 72Point of a Client Order (Commencement Date). Acceptance shall usually be indicated by the issue of an order acknowledgment confirming operational matters such as the timescale for delivery.
  • The Contract shall remain in force until the earlier of the dates on which delivery of the Services is complete or the date determined in accordance with Clause 2.3.
  • If delivery of the Services is incomplete (other than as a result of a delay occasioned by 72Point), the Contract shall expire by effluxion of time without any reduction in the Charges paid or payable:
  1. a) in the case of the contract value being less than £10,000 (excluding VAT), six months commencing on the commencement Date; or
  2. b) in all other cases, twelve months commencing on the Commencement Date.

 

  1. Provision of the Services

 

  • 72Point shall provide the Services to the Client from the Services Start Date in accordance with the Contract.
  • In providing the Services, 72Point shall:
    • perform the Services with reasonable care and skill and to the standard reasonably expected from a competent and professional provider of services substantially similar to the Services;
    • in the case of public relations services, as a registered member of the Public Relations Consultation Association (PRCA), abide by the PRCA’s Professional Charter and Codes of Conduct and shall be subject to the PRCA Arbitration and Disciplinary Procedures;
    • promptly notify the Client of any complaint or other matter arising in relation to any Deliverables posted, shared or otherwise distributed by 72Point in the course of providing the Services; and
    • ensure that the Deliverables, and all materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
    • comply with all applicable laws, statutes, regulations, and codes from time to time in force, provided always that 72Point shall have no liability to the Client if, as a result of such compliance, it is in breach of any of its obligations under the Contract; and
    • take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that 72Point may destroy the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination of the Contract.

72Point shall use its reasonable endeavours to comply with any requests by the Client to amend or halt any plans to or cancel any schedules or work in progress, insofar as this is possible within the scope of 72Point’s obligations to its suppliers and provided that the Client shall be responsible for any costs or expenses incurred or to which 72Point is committed prior to, or as a result of, the cancellation or amendment. The Client shall also pay 72Point’s Charges covering the cancelled or amended Services, as well as any charges imposed on 72Point by third parties arising from the cancellation or amendment.

  • No modifications or alterations to any work created for the Client may be made without 72Point’s prior written consent. Any agreed modifications or alterations shall only be carried out by 72Point or under its supervision and shall be paid for at a rate agreed between the parties in writing. Reprints obtained by the Client shall not differ in any way from the originals supplied without 72Point’s prior written consent
  • The Client shall not use any Deliverable for any purpose other than that for which it was commissioned, nor shall it publish any draft or incomplete work without 72Point’s prior written consent.

 

  1. Edits

 

  • If the Client wishes to have the Deliverables edited, the Client must contact 72Point at the earliest opportunity. Upon such a request
  • 72Point will advise if a) the requested edits are possible, b) the timing of supply of the edited Deliverables, c) the charge (if any) for undertaking the edits d) anything else that may be necessary as a result of the Client’s requested edit. 72Point shall not undertake any edits unless and until instructed to do so by the Client. All edits are undertaken as part of the Contract and subject to the terms thereof.
  • 72Point shall provide the following edits in relation to the Deliverables without additional charge to the Client:
    • Up to two edits to a press release, an article, or video content.
    • One edit to survey questions, an infographic, quiz, or interactive Services
  • Edits other than those specified in Clause 4.3 will be subject to additional charges.
  1. Client’s obligations

 

  • The Client shall:
    • co-operate with 72Point in all matters relating to the Services;
    • provide, in a timely manner, such access credentials or information as 72Point may reasonably require, and ensure that it is accurate and complete in all material respects;
    • provide, in a timely manner, such feedback and approvals as 72Point may reasonably require in relation to the provision of the Services and the Client acknowledges that if approval is not given for the distribution of any Deliverables within 48 hours of approval being requested, 72Point may proceed to distribute such Deliverables;
    • promptly notify 72Point of any complaint or other matter arising in relation to any Deliverables posted, shared or otherwise distributed by the Client; and
    • permit 72Point’s personnel to attend meetings, when reasonably necessary, with any advertising, PR and/or marketing services agencies and other advisers engaged by the Client.
  • If 72Point’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or its personnel, 72Point shall:
    • have the right to suspend performance of the Services until such prevention or delay has been remedied and rely on the same to relieve it from performing any of its obligations;
    • not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
    • be entitled to payment of the Charges despite any such prevention or delay; and
    • be entitled to recover any additional costs, charges, or losses 72Point sustains or incurs that arise directly or indirectly from such prevention or delay.

5.3      If as a result of any act or omission of the Client an agreed diary/time slot is missed, the Client shall pay to 72Point liquidated damages in the sum of one thousand pounds (£1,000). The Parties confirm that this sum represents a genuine pre-estimate of 72Point’s loss.

  1. Ideas and Intellectual property

 

  • Nothing in the Contract shall prevent or restrict 72Point from reusing any Ideas developed by 72Point for other clients (whether or not such clients compete with the Client).
  • If 72Point has provided the Client with Ideas together with a quotation or estimate of the Proposed Charges for the execution of such Ideas, and 72Point is not engaged to provide Services, 72Point reserves the right to invoice the Client for the Proposed Charges if the Client, acting alone or through or with any other person, subsequently uses or employs such Ideas or any substantially similar ideas, concepts, strategies, and formats.
  • Subject to Clause1, 72Point assigns to the Client, by way of present and future assignment and with full title guarantee, all Intellectual Property Rights in and to the Deliverables and 72 Point shall:
    • obtain waivers of all moral rights in the Deliverables to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 (or any similar provisions of law in any jurisdiction);
    • promptly at the Client’s request, do (or procure to be done) all such further acts and things and the execute all such documents as the Client may reasonably require for the purposes of securing for the Client all right, title and interest in and to the Intellectual Property Rights in the Deliverables; and
    • indemnify the Client in full against any sums awarded by a court against the Client arising out of or in connection with any claim brought against the Client for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Deliverables by the Client.
  • The Client shall retain ownership of all Intellectual Property Rights in the Client Materials and the Client:
    • grants to 72Point a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract;
    • warrants that the receipt or use of the Client Materials in the performance of the Contract by 72Point shall not infringe the rights (including copyright and related rights and moral rights) of any third party;
  • The Client grants to 72Point a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use the Client’s name, Client Materials and the Deliverables for the purposes of marketing 72Point’s services in any form or media, provided that the Client may revoke such licence on reasonable notice in writing in respect of any future marketing by 72Point.
  • In respect of Client Material in which the Client does not own the IPR, the Client warrants that a) it has the unqualified consent of the owner of the IPR to distribute the Client Material specifically for use on the SWNS wire service, through which service the Client Material will be provided to print and online publishers worldwide, and b) the owner of the IPR acknowledges and agrees that although ownership of the IPR in the Client Material does not pass to 72Point or SWNS, publishers may credit or by-line the Client Material as SWNS content, and not refer to acknowledge the IPR owner. The Client undertakes to provide to 72Point upon request such evidence of the consents set out in this Clause 6.6 as 72Point consider reasonable.

The Client shall indemnify, hold harmless and defend 72Point 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 reasonable legal costs) and all other reasonable professional costs and expenses) suffered or incurred by 72Point arising out of or in connection with any claim that the Client Materials or any of them, or 72Point’s use of the Client Materials or any of them infringes a third party’s rights,  including but not limited to copyright and related rights and any moral rights.

 

  1. Charges and payment

 

  • In consideration for the provision of the Services, and upon receipt of a valid VAT invoice the Client shall pay 72Point the Charges, together with VAT thereon at the prevailing rate, in accordance with this Clause 7.
  • 72Point shall submit invoices for the Charges to the Client at the point of booking or at mutually agreed intervals. Each invoice shall include reasonable supporting information required by the Client.
  • The Client shall pay each invoice due and submitted to it by 72Point, within 30 days of receipt, to a bank account nominated in writing by 72Point.
  • If the Client fails to make any payment due to 72Point under the Contract by the due date for payment, then, without limiting 72Point’s remedies under Clause 9 (Termination):
    • the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause will accrue each day at 8% per annum above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
    • 72Point may suspend all Services until payment has been made in full.
  • All amounts due under the Contract from the Client to 72Point shall be paid in full without set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. Limitation of liability

 

  • 72Point shall have no liability for any error in the Deliverables as published, for any delay or failure in publication as planned, unless such error, delay or failure is caused by the 72Point’s negligence or wilful default.
  • Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
    • death or personal injury;
    • fraud or fraudulent misrepresentation; and
  • Subject to Clause 2, 72Point’s total liability to the Client, if any, shall not exceed:
    • where the Client appoints 72Point to provide the Services on an ongoing basis, an amount which is equal to the total Charges paid in the preceding 12-month period in which the cause of action occurred; or
    • where the Client appoints 72Point to perform Services on a one-off basis, an amount which is equal to the Charges paid or payable in respect of the Services in respect of which the cause of action occurred.

  1. Termination

 

  • Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
    • the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
    • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
    • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
    • the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
  • Without affecting any other right or remedy available to it, 72Point may terminate the Contract with immediate effect by giving written notice to the Client if:
    • the Client fails to pay any amount due under the Contract on the due date for payment; or
    • there is a change of control of the Client.
  • On expiry or termination of the Contract for whatever reason:
    • the Client shall immediately pay to 72Point all of the outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, 72Point may submit an invoice, which shall be payable immediately on receipt;
    • any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
    • termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

 

  1. Confidentiality and data protection

 

  • Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of counterparty’s Group, except as permitted by Clause 2. For the purposes of this Clause, Group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
  • Each party may disclose the other party’s confidential information:
    • to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this Clause 10; and
    • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
  • If in providing the Services 72Point shall be required to process any personal data (as defined in the UK GDPR) on behalf of the Client, the parties shall enter into 72Point’s standard data processing agreement.

 

  1. General
    • Non-solicitation: During the term of the Contract and for a period of six months following its expiry or termination, neither party shall engage or employ or engage or solicit for employment or engagement any person who is employed or engaged by the other party (except a person who is engaged or employed in response to a national advertising campaign open to all comers) or otherwise seek to influence or alter any such person’s relationship with the other party (except that this restriction shall not preclude the carrying out of a national advertising campaign open to all comers).
    • Force majeure: Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    • Assignment and other dealings:
      • The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without 72Point’s prior written consent (such consent not be unreasonably withheld).
      • 72Point may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract provided that, where 72Point subcontracts any of its obligations under the Contract, such subcontracting shall not release 72Point from its obligations under the Contract and 72Point shall remain fully liable for the performance of the Services.
    • Entire agreement:
      • The Contract 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.
      • Each party acknowledges that in entering into the Contract 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
    • Variation: No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Contract.
    • Notices:
      • Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
      • Any notice shall be deemed to have been received, if delivered by hand, on signature of a delivery receipt, or, if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
      • This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
      • A notice given under the Contract is not valid if sent by email.
    • Third party rights: The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract and the rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
    • Counterparts: The Contract may be executed in any number of counterparts each of which when executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument.
    • Governing law: The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
    • Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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