CSM LIVE Service Agreement
STANDARD TERMS OF BUSINESS
The supply of all Services (which shall include all materials and deliverables) by CSM Sport and Entertainment LLP trading as CSM Live and its group companies (“CSM”) is subject to these Standard Terms.
CSM Sport and Entertainment LLP operates as a group of individual businesses transacting separate lines of business. The particular group business through which CSM Sport and Entertainment LLP acts as a party to this Agreement is identified as CSM Live. The rights and obligations of CSM Sport and Entertainment LLP as a party to this Agreement, and its liability to the Client, do not extend beyond the business which it is identified as “trading as” or “CSM Live” except to the extent that any other group business is explicitly and separately identified in the Agreement as having rights and obligations in relation to the Client, and the rights and obligations in this Agreement shall not extend to any other business carried on by CSM Sport and Entertainment LLP, or by its subsidiaries, its holding company or any subsidiary of its holding company.
By accepting the services (including the signing of a letter of engagement, acceptance of delivery of goods or services, and/or payment or agreement to charges the Client accepts these Standard Terms.
1 INTELLECTUAL PROPERTY RIGHTS, TITLE AND RISK
1.1 Intellectual Property Rights means any and all rights in and to all inventions, patents, utility models, designs (both registered or unregistered), database rights, copyright and trade marks (both registered and unregistered), together with all rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature (“IPR”).
1.2 The IPR together with all image and moral rights in all materials and other similar deliverables as specified in the LOE, including but not limited to artwork, photography, footage (in all forms of media), copy and other work (“Materials”) produced as a result of the Agreement shall be the property of CSM.
1.3 The IPR together with all image and moral rights in all ideas, designs, proposals and other such concepts (“Concepts”) produced as a result of the Agreement shall be the property of CSM.
1.4 CSM will license the use of its IPR in the Materials and Concepts to the Client for the Term
1.5 On payment in full by the Client of all Charges due to CSM (defined in 2.1 below), any IPR lawfully assigned by subcontractors and their agents to CSM and CSM’s own IPR in the Materials and Concepts may be assigned to the Client subject to payment by the Client of any assignment costs.
1.6 CSM shall retain the IPR to any Concepts which have not been used by the Client by the end of the Term
1.7 All IPR which pre-date the Agreement shall be retained by CSM or the Client as appropriate.
1.8 Where physical goods are being supplied, risk shall pass to the Client on delivery to a venue or location agreed with the Client.
2.1 All fees, costs and expenses (the “Charges”) will be set out in the LOE and are subject to the addition of Value Added Tax at the current rate.
2.2 All invoices issued by CSM are payable within thirty (30) days of presentation.
2.3 The Charges are exclusive of all disbursements and other incidental expenses incurred by CSM on behalf of the Client. Examples of these disbursements and incidental expenses are in relation to: advertising artwork and mechanical items (i.e. block typesetting), design printing, media monitoring including press cuttings, courier services, prizes and promotional gifts, postage, cost of photocopying and stationery, photography and prints, press material distribution, subsistence, telephone, e-mail charges, travel and accommodation, hospitality and any copyright assignment fees. Such disbursements and incidental expenses shall be stated on the invoice issued by CSM and shall be payable by the Client in accordance with clause 2.2 above.
2.4 CSM reserves the right to add a handling charge of fifteen percent (15%) + VAT of the amount of disbursements invoiced with the prior written agreement of the Client.
2.5 CSM reserves the right to negotiate a revised fee and expense structure in the event that the requirements of the Client change and such changes are accepted by CSM.
2.6 No payments will be made to third parties on behalf of the Client without receipt by CSM in cleared funds of the required amount fourteen (14) days in advance of the date payment is due to the third party. CSM shall be entitled to charge the Client all costs relating to any arrangement which is entered into by CSM on behalf of a client.
2.7 CSM acts as the Client’s agent when incurring expenditure in relation to the provision of Services and the Client is responsible for the correct tax treatment of all such disbursements and incidental expenses.
2.8 CSM reserves the right to charge interest at a daily rate of three percent (3%) above the base rate for each day that any invoice remains unpaid twenty eight (28) days after payment has fallen due, but no interest will be charged without prior written notice being given to the Client.
2.9 In the case of default on payment of any Charges due to CSM, CSM reserves the right to withdraw the Services it is contracted to provide.
3 Amendments and Cancellations
3.1 CSM will take all reasonable steps to comply with any requests from the Client to amend or halt any plans or to cancel any work in the process of preparation insofar as this is possible within the scope of CSM’s contractual obligations to its suppliers.
3.2 Any amendment or cancellation will be implemented by CSM only on the understanding that the Client will be responsible for any Charges incurred as a result of the cancellation or amendment and which cannot be recovered by CSM (including but not limited to Charges arising in relation to third party commitments which have been entered into in connection with the Services), but the Client will have no such responsibility where the request for change arises out of CSM’s default.
3.3 Any amendment to the Agreement may be made only with the mutual consent of the parties as set out in writing, signed by a director.
3.4 In the event of any changes in legislation, CSM retains the right to amend these Standard Terms and will keep the Client informed in writing of any and all such amendments.
4.1 On termination of CSM’s appointment otherwise than by reason of CSM’s default in relation to the Services, CSM will be entitled to be paid in respect of all Services rendered and Charges incurred up to the effective date of termination.
4.2 Either party may terminate the Agreement upon giving thirty (30) days’ written notice if the other party is in material breach of any term or condition of the Agreement and has failed (in the case of a breach capable of being remedied) to remedy the breach within fourteen (14) business days of a written request to do so. Non-payment of the Charges shall be considered a material breach.
4.3 In addition to any other rights or remedies, either party may terminate the Agreement on written notice if the other party:
4.3.1 being a body corporate, (i) is unable to pay its debts as they fall due, (ii) passes a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, (iii) enters into a composition or scheme of arrangement with its creditors or if a receiver, manager, administrator or administrative receiver is appointed over any of its assets, (iv) ceases or threatens to cease to do business; or (v) an analogous event occurs to the other party in any jurisdiction;
4.3.2 being an individual, (i) is subject to a bankruptcy petition or order made against him, or enters into any composition or arrangement with or for the benefit of his creditors, or (ii) if a receiver (including fixed charge or court appointed), manager, insolvency practitioner or similar officer shall be appointed over the whole or a substantial part of the undertaking, property or assets of that other party; or
4.3.3 breaches clause 8.
4.4 For the purposes of clause 2 a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
4.5 The termination of the Services for any reason shall not affect those provisions having effect after termination.
4.6 If in CSM’s reasonable opinion, the Client, or any controlled or controlling person of the Client, acts or omits to act in a way which does or may bring CSM into disrepute or would have a materially adverse impact on CSM’s good name, reputation or public image, including causing or permitting anything which is offensive, immoral or illegal, CSM shall have the right to terminate this Agreement.
5.1 The Client will indemnify CSM and its officers and employees against any loss, damage or other liability suffered as a result of any claim or proceedings arising in connection with information, representation, reports, data or material supplied prepared or approved by the Client such material to include press releases, articles, copy, scripts, artwork and detailed plans or programmes unless arising as a result of any fault, negligence or unauthorised act on the part of CSM, its employees or agents.
5.2 The Client will indemnify and keep indemnified CSM and its officers and employees against any loss, damage or other liability in respect of any employee at any time of the Client whether such loss, damage or liability arises before, on or after the date on which the Services commence, save as where such loss, damage or liability arises as a direct result of the negligence of CSM.
6.1 Nothing in this Agreement shall limit the liability of either party for death or personal injury resulting from its negligence or for fraudulent misrepresentation or for any liability which cannot be excluded by law.
6.2 Subject to clause 1, the following provisions set out the limitations on the liability of CSM to the Client with respect to:
6.2.1 any breach of its contractual obligations arising under the Agreement;
6.2.2 any representation, statement, act or omission given, made or carried out or in connection with the Agreement (whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever).
6.3 Except as expressly set forth in the Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law and in no event shall CSM be liable for any negligence or other tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not CSM is advised of the possibility of loss, liability, damage or expense):
6.3.1 loss of revenue;
6.3.2 loss of actual or anticipated profits (including for loss of profits on contracts);
6.3.3 loss of the use of money;
6.3.4 loss of anticipated savings;
6.3.5 loss of business;
6.3.6 loss of operating time or loss of use;
6.3.7 loss of opportunity;
6.3.8 loss of goodwill;
6.3.9 loss of reputation;
6.3.10 loss of, damage to or corruption of data; or
6.3.11 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 6.3.1 – 6.3.10).
6.3.12 direct financial and other loss not excluded by this clause is accepted by CSM to the limits set out in clause 6.4.
6.4 Except as stated in clause 1, the aggregate liability of CSM to the Client with respect to all claims under or in connection with the Agreement shall be limited to damages not exceeding the total Charges payable to CSM under the Agreement in the twelve (12) months immediately prior to the date of any claim or series of connected claims.
6.5 The Client acknowledges that it is responsible for any guests of the Client (“Guests”) and CSM shall not assume any liability for any loss, injury (including death) or damage (i) caused by the Guests or (ii) to the Guests or their property unless the same arises as a result of CSM’s negligence.
6.6 No claim may be brought against CSM’s employees personally.
7.1 CSM will take out and maintain insurance to cover its legal liabilities under the Agreement to a level appropriate to the Services it is providing. The Client shall be entitled to request a copy of the insurance certificates.
7.2 CSM shall not be required to name the client as additional insured’s under the policy nor to waive any rights of subrogation in the client’s favour.
7.3 CSM shall be added by the client as an additional insured party to any cancellation insurance policies procured by the client.
7.4 CSM may, in its absolute discretion, refuse to enter into any agreement with a third party supplier, in the performance of its services, where CSM is unable to (i) limit its liability to amounts which do not exceed the available amount of its insurance cover and (ii) exclude its liability for indirect or consequential losses, despite CSM using reasonable endeavours to negotiate the same. If there are not alternative suppliers, the client shall either (i) indemnify CSM for all liabilities which arise above and beyond CSM’s available level of insurance or (ii) enter into the agreement with the third party supplier directly.
8 COMPLIANCE WITH ANTI-CORRUPTION, SANCTIONS AND ANTI-SLAVERY REQUIREMENTS
8.1 Each party shall comply, and shall procure that its associates comply with:
8.1.1 the UK Bribery 2010 and all other applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption;
8.1.2 any trade, export controls, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the Security Council of the United Nations; the European Union; the United Kingdom (including the Department for Business, Innovation and Skills and Her Majesty’s Treasury) and/or by the authorities of the state(s) in which the party is registered, established or in which it otherwise conducts activities;
8.1.3 the Modern Slavery Act 2015 and all other applicable laws, regulations, codes and sanctions relating to anti-slavery and human trafficking,
8.2 Each party shall have in place adequate procedures designed to prevent its associates from engaging in any activity, practice or conduct which would infringe any of the Relevant Requirements. Each party shall provide such supporting evidence of such procedures as the other party may reasonably request.
8.3 Each party (the “Indemnifying Party”) shall indemnify the other party (the “Indemnified Party”) against any losses, liabilities, damages, costs (including legal fees) and expenses incurred by, or awarded against, the Indemnified Party as a result of any breach of this clause 8 by the Indemnifying Party or any breach of provisions equivalent to this clause in any subcontract by any subcontractor.
8.4 For the purposes of this clause 8, a person associated with a party includes any directors, employees, agents, representatives, contractors or permitted subcontractor of that party.
9 Data Protection
9.1 CSM will use information provided by the Client for the provision of the Services specified in the LOE.
9.2 CSM is also entitled to use information about the Client for administration and for marketing including advising about CSM’s Services.
9.3 Information provided by the Client may be shown to such agents and contractors on a need-to-know basis for the purpose of providing the Services and this may involve sending it outside the European Economic Area.
9.4 The Client has a right to ask for a copy of the information (which it has provided) held by CSM at any time and to have that information corrected if it is inaccurate.
9.5 CSM is entitled to make a search of the Client with a credit reference agency and may keep a record of that search and share that information with other businesses. In addition this information will be used in assessing credit limits. CSM may also make enquiries about Client company directors with a credit reference agency.
10.1 CSM will ensure an adequate level of staffing to provide the Services.
10.2 CSM representatives will make themselves available to the Client from time to time at mutually acceptable times and locations to keep the Client fully informed of the progress of the services being provided.
10.3 If the Client’s project requires staff to be DBS checked or equivalent, the Client will be responsible for the additional cost of DBS checks (or such checks as are considered appropriate by CSM) for any staff member (whether from CSM or the Client) who does not already hold a valid, updated DBS certificate or equivalent.
10.4 The Client shall not employ any of CSM’s staff during provision of the Services or for a period of one year after the end of the Agreement, without the written consent of CSM.
11 Third Parties
These terms and conditions set out the rights and obligations as agreed between CSM and the Client only. All work done and advice provided is for the Client’s use and benefit only and CSM’s duty of care is to the Client and not to any third parties. Nothing in the Agreement will confer on any third party any benefit or right to enforce any of these Standard Terms or to rely on any work done or advice provided by CSM.
12.1 CSM and the Client shall treat all recommendations and reports submitted by CSM to the Client and paid for by the Client as confidential, unless otherwise agreed. CSM shall treat all information provided to it by the Client as confidential unless otherwise agreed, or unless it is already in the public domain.
12.2 CSM and the Client agree to keep the terms of the Agreement confidential, in particular its financial terms, unless disclosure of the same is required by applicable law.
12.3 The Client acknowledges that CSM may produce one or more case studies summarizing the way in which the Services provided by CSM have been implemented, for internal use and in presentations to other clients or potential clients. Where any such case studies (a) include information beyond what is available in the public domain, or (b) will be used by CSM for promotional and publicity purposes, the content of the case study will be subject to the Client’s review and approval.
13 CLIENT WARRANTIES
13.1 The Client warrants that:
13.1.1 in carrying on its business, it abides by all relevant and applicable laws and regulations, including but not limited to the Relevant Requirements, and neither the Client, nor any controlled or controlling person nor official of the Client, is subject to any such sanctions, or will receive any significant benefit in money or otherwise from the work being done by CSM;
13.1.2 it is not nor any beneficial owners, director or any other person who has powers of representation, decision or control over the Client is not identified on any restricted party list issued by a national government or international organisation as subject to any sanction or embargo, including without limitation, any such list maintained by the Security Counsel of the United Nations, the European Union, the United Kingdom, the United States of America and/or by the authorities of the state(s) in which the Client is registered, established or in which it otherwise conducts activities
13.1.3 it has disclosed to CSM any recent judgments and pending claims of a material nature, or which are likely to adversely affect its or CSM’s good name, reputation, or public image; and
13.1.4 it has in place systems for preventing, auditing and investigating fraudulent, corrupt or illegal activities, security breaches or similar situations and is not aware of any such situation currently existing.
13.2 Breach of any of the warranties in this clause shall entitle CSM to terminate the Agreement by written notice with immediate effect.
14.1 Costs. Each party shall bear its own costs in connection with the negotiation and completion of the Agreement.
14.2 Assignment and Subcontracting. The Client shall not without the prior written consent of CSM (such consent not to be unreasonably withheld or delayed) assign, transfer (in whole or in part), sub-licence or charge or deal in any manner with the Agreement or the benefit or burden of or the rights thereunder. CSM may sub-contract to another person the performance of any of the
14.3 Independence. Nothing in the Agreement shall create, or be deemed to create a partnership or the relationship of employer and employee between the parties and neither party shall have authority to bind the other in any way, except as set out in these Standard Terms.
14.4 Severance. If any provision of these Standard Terms is held by any court or other competent authority to be void or unenforceable in whole or in part, it shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
14.5 Freedom of Information Requests. Where the Client is subject to the Freedom of Information Act (“FOIA”), and receives a request pursuant to the FOIA to disclose information relating to or received from CSM (including the terms of the Agreement), the Client will consult with CSM, and will use reasonable endeavours to identify and redact all commercially sensitive and other material exempt from disclosure, before releasing any such information.
14.6 Notices. All notices between the parties with respect to the Agreement shall be in writing and signed by or on behalf of the party giving it. Any notice shall be duly served (i) on delivery if delivered by hand, (ii) forty eight (48) hours after sending if sent by first class post or recorded delivery or (iii) on sending if sent by email (provided that a copy is also sent by post in accordance with (ii) above), provided that in each case the notice is sent to the address of the addressee in the Agreement or such other address as the addressee may from time to time have notified for the purpose of this clause.
14.7 Good Faith. Neither party will do or omit to do anything which would bring or might be expected to bring the other party into disrepute.
14.8 No Reliance. Neither party shall rely on, any representation, warranty, promise, assurance, undertaking or other provision (whether in writing or not) except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of the Agreement shall be for breach of contract under its terms. Nothing in the Agreement shall exclude liability for fraud or fraudulent misrepresentation.
14.9 Force Majeure
14.9.1 If either party is prevented or delayed by Force Majeure from the performance of any of its obligations under this Agreement (the “Defaulting Party”), then the Defaulting Party shall not be liable to the other party for delay or non-performance of its obligations under the Agreement so affected and such delay or non-performance shall not constitute a breach of the Agreement. “Force Majeure” shall be any act, event, omission, cause or circumstance not within the reasonable control of the party in question, including any strike, lockout or other industrial action, any civil commotion or disorder, riot, invasion, war or terrorist activity or threat of war or terrorist activity, any action taken by a governmental or public authority of any kind (including not granting a consent, exemption, approval or clearance), an event of national significance (including any day of national mourning), any fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster.
14.9.2 In the event the Client is prevented from performing its obligations for reasons of Force Majeure, CSM shall have the right to receive ten percent (10%) of the remaining Charges by way of compensation in addition to all Charges for work completed to date and all costs for all work that has been completed, committed or cannot be cancelled.
14.10 Governing Law. These Standard Terms and any dispute or claim arising out of or in connection with the Agreement (including any non-contractual claim or dispute) shall be governed by and construed in accordance with the laws of England and Wales.
14.11 Dispute Resolution
14.11.1 Save that nothing in this clause shall prevent a party from seeking relief pursuant to section 44 of the Arbitration Act 1996, the parties shall attempt to resolve any question, dispute or difference as to any matter or thing of whatever nature arising under or in connection with these Standard Terms or the Agreement (a “Dispute”) through negotiations between senior executives of the parties who shall have authority to settle the same. Either party shall commence the negotiations by serving the other Party with a written ‘request to negotiate’. In conducting the negotiations, the parties shall meet at least once and shall use their bona fide reasonable efforts to resolve the Dispute.
14.11.2 In calculating the limitation period for any claim that is ultimately pursued through arbitration, the period between the date of service of the ‘request to negotiate’ and the date on which the parties are free to resort to arbitration shall be excluded.
14.11.3 If the Dispute is not resolved by negotiation within thirty (30) days of receipt of a written ‘request to negotiate’, the Dispute shall be finally resolved by arbitration under the rules of the London Court of International Arbitration (“LCIA”) and such rules are deemed to be incorporated by reference into this clause. It is agreed that:
(a) The tribunal shall consist of one arbitrator.
(b) In default of the parties’ agreement as to the arbitrator, the appointing authority shall be the LCIA.
(c) The seat of the arbitration shall be in London.
(d) The language of the arbitration shall be English.
(e) The law of the arbitration and this arbitration agreement shall be the laws of England and Wales.