1.1 In this Agreement, the following words shall have the following meanings:
“Agreement” means together the Purchase Order and these Terms and Conditions.
“Confidential Information” means any information relating to the Customer’s directors, officers and employees, budgets, prices, order book, accounts, finances, parent and subsidiary companies, Customer Data and its customers and clients.
“Customer” means the WPP operating company named on the Purchase Order.
“Customer Data” means any data (including any personal data relating to staff, customers/clients or suppliers of the Customer or its clients), documents, text, drawings, diagrams, specifications, images (together with any database made up of these) supplied or made available to the Supplier by or on behalf of the Customer or its clients, or which the Supplier is required to generate, process, store or transmit pursuant to this Agreement.
“Data Protection Legislation” means the Data Protection Act 1998, the European Data Protection Directive (95/46/EC) and the European Privacy and Electronic Communications Directive including any legislation implementing these Directives in any country (as amended from time to time), and with effect from 25 May 2018 the General Data Protection Regulation (EU) No 2016/679.
“Delivery” means the delivery of the Goods during normal business hours to the premises notified by the Company or collection of the Goods where Company has agreed to collect the Goods.
“Deliverables” means all Goods, items, equipment and materials to be supplied as part of the Services.
“Fees” means the total sum to be paid by the Customer as stated on the Purchase Order.
“Goods” means the goods and any other work products to be supplied by the Supplier as set out in the Purchase Order.
“Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, moral rights, database rights, semiconductor topography rights, utility models, rights in designs, trade-marks, service marks, trade names, domain names, rights in goodwill, rights in undisclosed or confidential information, and other similar or equivalent rights or forms of protection as may now or in the future exist anywhere in the world.
“Purchase Order” means the purchase order attached to these Terms and Conditions.
“Services” means the services specified in the Purchase Order.
“Supplier” means the entity identified in the Purchase Order.
“Supplier Personnel” means all personnel required to perform the Services.
“Supplier Policies” means all policies or codes of conduct applicable to the suppliers of WPP plc. and its direct or indirect subsidiaries, as notified by the Customer to the Supplier from time to time or as made available on any extranet operated by the Customer for its suppliers from time to time, including, but not limited to, the WPP Code of Business Conduct attached hereto as Schedule 1 and any applicable WPP anti-bribery policies.
2.1 The Purchase Order shall be deemed accepted upon commencement of the Services. The Supplier shall provide the Services from the date specified on the Purchase Order. The Supplier shall provide the Services to the Customer in accordance with the Customer’s requests from time to time, the Supplier Policies, best industry practice and the terms of this Agreement. Time for the performance of the Services shall be of the essence.
2.2 The Supplier warrants that each of the Supplier Personnel:
(a) shall comply with the Supplier Policies;
(b) are suitably qualified and trained in order to provide the Services;
(c) have been appropriately screened in accordance with any specific instructions issued by the Customer, and do not have any criminal convictions; and
(d) are entitled to work in the territory in which the Services are being provided.
2.3 The Supplier warrants, undertakes and represents on an ongoing basis that:
(a) it has full capacity and authority to enter into and perform its obligations under this Agreement;
(b) it is in compliance with all applicable laws, regulations and codes of practice;
(c) it will not do any act or make any omission in relation to the performance of its obligations under this Agreement which does or may adversely materially affect the reputation of the Customer or its client; and
(d) the Deliverables are complete, accurate, non-infringing and compliant in all respects with this Agreement.
3.1 Supplier will deliver the Goods:
(a) to the premises set out in the Purchase Order or to such other premises as notified by Company; and
(b) on the date set out in the Purchase Order, and time shall be of the essence;
(c) and Delivery will be complete when the Company issues a receipt note.
3.2 Company does not have to accept delivery by instalments or outside the delivery hours notified by Company from time to time (acting reasonably) or, where none are stated, normal business hours.
3.3 Except where the Incoterms apply and say differently, if Company pays for any Goods before they are in Company’s possession and control, Supplier will insure those Goods against all risks from payment to Delivery, for an amount at least equal to the Charges.
3.4 All Goods must include a delivery note containing a description of the Goods and volume delivered together with any other information notified in advance to be reasonably required.
3.5 Where Supplier disposes of any Goods Supplier will (at its own expense) remove all references to Company.
4.1 The Supplier shall only be entitled to invoice the Customer upon completion of the Services to the Customer’s reasonable satisfaction. The Customer shall pay the Fees for the Services on the Customer’s next payment run following a date which is sixty (60) days after the end of the month in which a valid invoice specifying the correct PO number is received. Where the Services are procured from the Supplier by the Customer acting for the benefit of a client, the Customer shall not be obliged to make payment to the Supplier until it has received payment from the client. The Fees are exclusive of sales or similar taxes. The Customer shall be entitled to make deductions or withholdings from the Fees where required by law.
4.2 The Supplier may charge interest on any undisputed overdue sum at the rate of 2% above the Bank of England base rate per annum.
5.1 The Customer may terminate this Agreement, in whole or (with a proportionate reduction in the Fee) in part, at any time:
(a) for convenience on thirty (30) days’ written notice to the Supplier; or
(b) immediately if the Supplier is in material breach of this Agreement which is not remedied within 14 days of the Supplier being given notice to do so by the Customer; or
(c) immediately if an order is made or a resolution is passed for the winding up of the Supplier, or the Supplier has a receiver or administrator appointed of any part of its assets, or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or a court to make a winding up or administration order, or makes an arrangement with creditors or if the Supplier is unable to pay its debts as and when they fall due.
5.2 Upon expiry or termination of this Agreement or of any part of the Services, the Supplier will deliver all Confidential Information to the Customer and liaise with the Customer and/or third party to ensure a satisfactory handover.
5.3 Expiry or termination of this Agreement shall be without prejudice to any rights accrued up to the date of termination or any provisions which expressly or impliedly survive termination.
6.1 The Supplier shall keep and maintain at its principal place of business true and accurate written books and records in connection with the Services (including but not limited to timesheets, claims records, invoices, expenses, costs, credit notes) in accordance with generally accepted accounting and document retention principles during this Agreement and for a period of 6 years thereafter and permit the Customer and/or its client or the Customer’s authorised representative to inspect such records upon reasonable written notice for the purposes of assessing compliance with this Agreement (including, without limitation, the restrictions set out in Clause 11). If, as a result of an audit, the Customer discovers any overpayment in relation to the Services or any other non-compliance with the terms of this Agreement, the Supplier shall promptly rectify such non-compliance at its own cost and refund to the Customer the full amount of any overpayment and the costs of the relevant audit.
6.2 The Supplier acknowledges that WPP plc. is a publicly listed company in the United States and therefore WPP plc. must comply with the terms of the Sarbanes-Oxley Act of 2002, including, but not limited to, section 404. The Supplier agrees to provide to the Customer or WPP plc., and to permit the Customer’s authorised representative to inspect upon reasonable written notice, such reports, records and information as are necessary for the purposes of WPP plc. complying with the Sarbanes-Oxley Act of 2002 or any other applicable legislation.
7.1 Nothing in this Agreement shall exclude or limit either party’s liability in respect of any claims:
(a) for death or personal injury caused by the negligence of such party; or
(b) resulting from any fraud including fraudulent misrepresentation made by such party; or
(c) for which liability may not otherwise lawfully be limited or excluded; or
(d) for any indemnity provided by the Supplier to the Customer under this Agreement; or
(e) for any breach by the Supplier of Clauses 9 to 11 inclusive or 13.1; or
(f) for any deliberate or wilful default by the Supplier.
7.2 Subject to Clause 7.1, the Customer shall not be liable for any indirect, special or consequential losses or any loss of profits (whether direct or indirect), loss of goodwill, loss of business, loss of revenue or loss of anticipated savings.
7.3 The Supplier shall indemnify the Customer against all losses, costs, liabilities, damages, expenses, claims and proceedings incurred and/or suffered by the Customer arising out of or in connection with:
(a) any breach of this Agreement; or
(b) any loss of or damage to property of the Customer during the provision of the Services; or
(c) any negligent act or omission by the Supplier, the Supplier Personnel and/or sub-contractors or their employees in connection with this Agreement; or
(d) any claim that the use of the Goods, Deliverables and/or Services infringes the Intellectual Property Rights of any third party.
7.4 Subject to Clauses 7.1 and 7.2, the Customer’s total aggregate liability arising from or related to this Agreement (whether in contract, tort including negligence or otherwise) shall not exceed an amount equal to the Fees paid or payable to the Supplier by the Customer under this Agreement in the twelve (12) months preceding the event that triggered such liability.
7.5 Subject to Clauses 7.1 and 7.2, the Supplier’s total aggregate liability arising from or related to this Agreement (whether in contract, tort including negligence or otherwise) shall not exceed £10,000,000 (ten million pounds sterling) per claim.
8.1 The Supplier shall take out and maintain with a reputable third party insurer insurance to cover the Supplier’s obligations and liabilities under this Agreement and:
(a) in respect of its public liability, to a minimum value of £1,000,000 for any one event and unlimited in the relevant insurance period;
(b) in respect of its employer’s liability, to a minimum value of £5,000,000 for any one event and unlimited in the relevant insurance period;
(c) in respect of its professional indemnity liability, to a minimum value of £1,000,000 for any one event and unlimited in the relevant insurance period.
8.2 Each such policy shall name the Customer as additional insured and shall contain an indemnity to principals clause. Each such policy shall not call into contribution and shall not be in excess to any other insurance available to the Customer. The Customer shall not be liable in respect of any deductibles payable and such deductibles shall be no less than £50,000.
8.3 The Supplier shall take out such additional insurance cover as the Customer shall reasonably require from time to time.
9.1 If the provision of the Services requires the processing of personal data by the Supplier on behalf of the Customer, the Supplier will:
(a) comply with the Data Protection Legislation;
(b) act only on the instructions of the Customer as data controller;
(c) at all times take all appropriate technical, operational, managerial, physical, organisational measures in accordance with prevailing practices of care, skill, professionalism and diligence to safeguard against unauthorised or unlawful processing of personal data and against any unauthorised or unlawful accidental loss, destruction of, or damage to, personal data and ensure the security of such personal data;
(d) shall not delete, transfer, remove or otherwise process any of the Customer’s data, except in accordance with the Customer’s instructions or the terms of this Agreement;
(e) shall permit the Customer or the Customer’s representative, at the Customer’s own cost, at any time on reasonable prior written notice (a minimum of 5 days’ notice) to have access to the appropriate part of the premises, systems, equipment or other materials and facilities where the Supplier, its suppliers or sub-contractors process the personal data for security review and verification purposes; and
(f) shall inform the Customer immediately if at any time there is a breach or suspected breach of this Clause 9, or any personal data is or is suspected to be lost, corrupted, used or disclosed to a third party otherwise than in accordance with this Agreement.
9.2 The Supplier shall indemnify the Customer against all losses, liabilities, claims, expenses, damages and costs suffered or incurred by the Customer as a result of the Supplier’s failure to abide by the Data Protection Legislation and this Clause 9.
9.3 The Supplier warrants that it shall have in place measures which incorporate the ISO/IEC 27001 information security standard or any such equivalent standard that replaces it from time to time.
9.4 The Supplier shall make available to the Company all information necessary to demonstrate compliance with the obligations in this Clause 9 and allow for and contribute to audits, including inspections, conducted by the Company or an auditor nominated by the Company.
10.1 Subject to Clause 10.2, the Customer shall own the Intellectual Property Rights in the Deliverables and the Supplier hereby irrevocably and unconditionally assigns with full title guarantee to the Customer all and any Intellectual Property Rights, upon creation of the same, in the Deliverables. The Supplier shall, and shall procure that the Supplier Personnel waive in favour of the Customer absolutely and irrevocably their moral rights (if any) in relation to such Deliverables.
10.2 Nothing in this Agreement is intended to affect the Supplier’s ownership of materials used or developed by it independently of the Services or the Supplier’s generic methodologies, tools, technology or processes which are used by it (but not developed by it) in the performance of the Services (together the “Supplier’s Pre-Existing Materials“). If the Supplier’s Pre-Existing Materials (or part thereof) are incorporated in the Deliverables, or required to use or exploit the Services, the Supplier hereby grants to the Customer a perpetual, worldwide, irrevocable, non-exclusive, royalty-free licence to use the Supplier’s Pre-Existing Materials to enable the Customer to obtain the full benefit of the Services.
10.3 The Supplier warrants and represents that it has the right to assign or license all Intellectual Property Rights granted or assigned pursuant to this Agreement and that the grant and terms of its respective assignment or licence shall not infringe the Intellectual Property Rights of any third party.
10.4 The Supplier shall not acquire any right, title or interest in or to any Intellectual Property Rights owned by or licensed by any third party to the Customer by reason of this Agreement and the Supplier acknowledges that all such Intellectual Property Rights remain the property of the Customer and/or its licensors.
11.1 The Supplier shall comply with the Foreign Corrupt Practices Act, 15 U.S.C. §78dd-2 (the “FCPA”) and the UK Bribery Act 2010 (the “UKBA”) and shall procure the compliance with the FCPA and the UKBA by its group companies, associates and each of their respective directors, employees, agents and intermediaries or any party that is carrying out a service for the Customer (each an “Associated Person”).
11.2 The Supplier shall not, and shall procure that each Associated Person shall not, directly or indirectly, request, agree to receive or accept a financial or other in violation of his/her or its lawful duty or inducing him/her or it to exercise his/her or its influence to affect or influence any act or decision (including the improper performance of any function) of him, her or it or to obtain or retain business for the Customer. The Supplier shall notify the Customer in writing immediately if it becomes aware of any violation of the FCPA, UKBA or this Clause 11.
12.1 Title to any property of the Customer or a client of the Customer provided to the Supplier for the performance of the Services shall remain with the Customer or its clients (as applicable).
12.2 Subject to reasonable prior notice, the Customer or its client shall be entitled to retake possession of their property at any time from the Supplier.
12.3 The Supplier shall keep any property of the Customer or any client of the Customer in its possession safe and shall not dispose of or part with possession of such without the Customer and its client’s written consent, save as otherwise required for the performance of the Services.
12.4 The Supplier hereby waives any lien or other right that it might otherwise have over any property of the Customer or a client of the Customer and shall keep the same free of all liens and other encumbrances.
12.5 The Supplier shall only use the property of the Customer or any client of the Customer in connection with the performance of the Services to which they relate.
13.1 The Supplier shall during this Agreement and for a period of 5 years thereafter, keep confidential all Confidential Information and shall not use or disclose such Confidential Information to any third party except as may be strictly necessary in order to perform the Services or as required by law.
13.2 Neither party may assign, subcontract or in any way transfer any of their rights or obligations under this Agreement without the prior written consent of the other party except that the Customer may assign its rights to any subsidiary (direct or indirect) of WPP plc.
13.3 Each provision of this Agreement is severable and distinct from the others. Invalidity or unenforceability of a specific provision shall not affect the other provisions of this Agreement.
13.4 Any failure to exercise or any delay in exercising a right or remedy provided in this Agreement or at law or in equity shall not constitute a waiver of the rights or remedies or a waiver of any other rights or remedies.
13.5 Nothing in this Agreement shall be construed as establishing or implying any partnership or agency relationship between the parties.
13.6 This Agreement constitutes the entire agreement and understanding between the parties in respect of the matters dealt within it and supersedes any previous agreement between the parties relating to such matters. This Agreement may only be amended in writing with the agreement of the Customer and the Supplier.
13.7 No person who is not a party to this Agreement has any rights under the Contracts (Rights of Third Parties) Act 1999.
13.8 Any notice required to be given under this Agreement shall be in writing and shall be validly served only if sent to the other at the address on the Purchase Order by hand, by registered first class post or special delivery.
13.9 This Agreement and any non-contractual obligations shall be governed by English law and the parties agree to submit any dispute to the exclusive jurisdiction of the English Courts.
WPP Code of Business Conduct
WPP and its companies operate in many markets and countries throughout the world. In all instances, we respect national laws and any other laws with an international reach, such as the UK Bribery Act and the US Foreign Corrupt Practices Act, where relevant, and industry codes of conduct. We are committed to acting ethically in all aspects of our business and to maintaining the highest standards of honesty and integrity.
| We, the officers and staff of all companies in the WPP group (“the Group”), recognise our obligations to all who have a stake in our success including share owners, clients, staff and suppliers; | You confirm that you recognise our obligations and will not act detrimentally to these obligations.
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| Information about our business shall be communicated clearly and accurately in a non-discriminatory manner and in accordance with local regulations; | You confirm that you will treat information about the WPP Group as described.
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| We select and promote our people on the basis of their qualifications and merit, without discrimination or concern for race, religion, national origin, colour, sex, sexual orientation, gender identity or expression, age or disability; | You confirm that you have equivalent policies in your organisation.
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| We believe that a workplace should be safe and civilised; we will not tolerate sexual harassment, discrimination or offensive behaviour of any kind, which includes the persistent demeaning of individuals through words or actions, the display or distribution of offensive material, or the use or possession of weapons on WPP or client premises; | You confirm that you have equivalent policies in your organisation and that you will respect our workplace and people as described.
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| We will not tolerate the use, possession or distribution of illegal drugs, or our people reporting for work under the influence of drugs or alcohol; | You confirm that you have equivalent policies in your organisation and that you will respect our workplace and people as described.
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| We will treat all information relating to the Group’s business, or to its clients, as confidential. In particular, “insider trading” is expressly prohibited and confidential information must not be used for personal gain; | You confirm that you agree to our policy in respect of our information. |
| We are committed to protecting consumer, client and employee data in accordance with national laws and industry codes;
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You confirm that you have equivalent commitments in your organisation that cover all information from and relating to our business and that of our partners in that business. |
| We will not knowingly create work which contains statements, suggestions or images offensive to general public decency and will give appropriate consideration to the impact of our work on minority segments of the population, whether that minority be by race, religion, national origin, colour, sex, sexual orientation, gender identity or expression, age or disability; | Wherever relevant, you confirm that you have equivalent standards for your work. |
| We will not undertake work which is intended or designed to mislead, including in relation to social, environmental and human rights issues; | Wherever relevant, you confirm that you have equivalent standards for your work. |
| We will consider the potential for clients or work to damage the Group’s reputation prior to taking them on. This includes reputational damage from association with clients that participate in activities that contribute to the abuse of human rights; | This relates only to members of the WPP Group. |
| We will not for personal or family gain directly or indirectly engage in any activity which competes with companies within the Group or with our obligations to any such company; | This relates only to members of the WPP Group. |
| We will not give, offer or accept bribes, whether in cash or otherwise, to or from any third party, including but not restricted to government officials, clients and brokers or their representatives. We will collectively ensure that all staff understand this policy through training, communication and by example; | This applies directly to you. |
| We will not offer any items of personal inducement to secure business. This is not intended to prohibit appropriate entertainment or the making of occasional gifts of minor value unless the client has a policy which restricts this; | This applies directly to you. |
| We will not accept for our personal benefit goods or services of more than nominal value from suppliers, potential suppliers or other third parties; | This applies directly to you. |
| We will not have any personal or family conflicts of interest within our businesses or with our suppliers or other third parties with whom we do business; | You should have equivalent policies in your organisation. |
| No corporate contributions of any kind, including the provision of services or materials for less than the market value, may be made to politicians, political parties or action committees, without the prior written approval of the WPP board; and | You should have your own policy regarding such contributions, together with appropriate authorisation procedures. |
| We will continue to strive to make a positive contribution to society and the environment by: maintaining high standards of marketing ethics; respecting human rights; respecting the environment; supporting community organisations; supporting employee development; and managing significant corporate responsibility risks in our supply chain. Our Corporate Responsibility Policy provides more detail about our commitments in these areas. | You should have equivalent policies in your organisation. |