1. Definitions and Interpretation
1.1. In this Contract (including in the Contract Details to which these Terms and Conditions are appended), the following words or phrases shall have the meanings given to them below (unless the context requires otherwise):
“Confidential Information” means all information of a confidential nature disclosed (whether verbally or in writing) by either party to the other whether before or after the Effective Date, relating to such party's business, customers, personnel, suppliers, products, operations, methodologies, processes, developments, know-how and/or business affairs;
"Content Creator" means the individual or body corporate that is identified as the Content Creator in section 2 of the Contract Details;
"Contract" means this agreement comprising of the Contract Details, these Terms and Conditions and any other documents that are incorporated by reference into the Contract Details and/or these Terms and Conditions;
"Contract Details" means the Content Creator contract to which these Terms and Conditions are appended;
"Effective Date" means the last date of signature of this Contract;
“Intellectual Property Rights” or “IPRs” means any patents, registered trade marks or registered designs (and any applications for any of the foregoing), copyright, unregistered design rights, unregistered trade marks, know-how, database rights or any other intellectual property rights existing anywhere in the world at any time;
“Laws” means any laws, statutes, bye-laws, regulations, orders, regulatory policies, guidance or industry codes, rules of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body, in each case that is applicable in the relevant jurisdiction(s);
"Project" means the Content Creator marketing project described in section 2 of the Contract Details (and, where applicable, in any documents that are referred to in section 2 of the Contract Details which describe the Project);
"Project Deliverable" means each project deliverable that is to be provided or delivered by the Content Creator in connection with the Project, as described in section 2 of the Contract Details and/or as otherwise agreed between the parties from time to time;
"Project Deliverable Deadline" means the deadline for the provision or delivery of the relevant Project Deliverable by the Content Creator set out in section 2 of the Contract Details and/or as otherwise agreed between the parties from time to time;
"Project Deliverable Material" means all text, images, pictures, photographs, documents, graphics, trade marks, trade names, logos and other materials (in whatever form or medium) that are published, provided and/or made available by or on behalf of the Content Creator under and/or in connection with the Project and/or any Project Deliverable;
"Terms and Conditions" means the terms and conditions set out in this document;
"VisitScotland" means VisitScotland, an Executive Non-Departmental Public Body established under the Development of Tourism Act 1969, whose principal office is at Ocean Point One, 94 Ocean Drive, Edinburgh EH6 6JH;
"VisitScotland Contribution" means the contribution that is to be made by VisitScotland towards the Project, as set out in section 2 of the Contract Details;
"VisitScotland Costs" means all costs, expenses and other amounts that are suffered and/or incurred (or have been committed to be suffered or incurred) by VisitScotland and/or its employees, officers, agents, contractors, representatives and/or partners in connection with the provision, delivery and/or achievement of the VisitScotland Contribution; and
"VisitScotland Material" means all text, images, pictures, photographs, documents, graphics, trade marks, trade names, logos and other materials (in whatever form or medium) that is provided or made available by or on behalf of VisitScotland for use by the Content Creator in connection with the Project.
1.2. In the event of any conflict between the provisions of (i) these Terms and Conditions and (ii) the Contract Details (or any other documents that are incorporated by reference into the Contract Details), the parties agree that the provisions of these Terms and Conditions shall prevail.
1.3. Any reference in this Contract to a statutory provision includes any amendment, extension, consolidation or replacement of the same from time to time. Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. The Project
2.1. The parties each agree to comply with their respective obligations and duties in relation to the Project as set out in this Contract, including, without limitation, in section 2 of the Contract Details. Without prejudice to its other obligations under this Contract, the Content Creator agrees to provide or deliver (or, where applicable, ensure the provision or delivery of) each Project Deliverable on or before the relevant Project Deliverable Deadline.
2.2. Each party agrees that they will perform its obligations and responsibilities under and/or pursuant to this Contract:
2.2.1. in good faith;
2.2.2. with due skill and care; and
2.2.3. in accordance with all Laws applicable to (i) that party and (ii) the performance of that party’s obligations and duties under and/or pursuant to this Contract.
2.3. The Content Creator acknowledges and agrees that all activities undertaken by the Content Creator (and/or by any of its agents, officers, employees, representatives or contractors) in connection with the Project are undertaken at the Content Creator's own risk and VisitScotland shall have no liability or responsibility to the Content Creator or any third party in relation to death or personal injury (other than death or personal injury arising from VisitScotland's negligence) or any other costs, expenses, claims or liabilities that are suffered or incurred by the Content Creator (or by any of its agents, officers, employees, representatives or contractors) in connection with the Project.
2.4. It shall be the sole responsibility of the Content Creator to ensure that the Content Creator has in place adequate insurance in relation to all activities (including, but not limited to travel, accommodation, vehicle hire and excursions) that the Content Creator and/or any of the Content Creator's agents, officers, employees, representatives or contractors may undertake in connection with the Project, and regardless of whether such activities are funded (in whole or in part) by the VisitScotland Contribution. The Content Creator will provide evidence of all insurances put in place by or on behalf of the Content Creator in connection with the Project at any time on request by VisitScotland.
3.1. VisitScotland agrees to make the VisitScotland Contribution towards the Project, subject to and in accordance with the terms of this Contract.
3.2. Except to the extent expressly approved by VisitScotland in advance, all elements of the VisitScotland Contribution which relate to out of pocket expenses (e.g. travel, accommodation and/or vehicle hire expenses) will be arranged by VisitScotland in its sole discretion and the associated costs will be paid directly by VisitScotland to the relevant third party and will not be paid or payable by VisitScotland to the Content Creator.
3.3. VisitScotland shall not be obliged to make any contribution (whether financial or in-kind) to the Project in excess of or in addition to the VisitScotland Contribution, unless VisitScotland expressly agrees (in writing and in advance) to the contrary. Except to the extent expressly stated to the contrary in section 2 of the Contract Details, no cash equivalent to all or any part of the VisitScotland Contribution will be provided by VisitScotland in any circumstances.
3.4. The Content Creator shall be solely responsible for arranging (and shall bear all costs, expenses and liabilities associated with) all aspects of any visit(s) to Scotland (other than the items specifically listed in the VisitScotland Contribution) for the purposes of or in connection with the Project (or otherwise in connection with its business or operations), including, but not limited to, obtaining valid identification and compliance with all travel and health requirements (i.e. passports, visas), customs clearances, having in place adequate policies of insurance in connection with the Project and all travel associated with the Project and for ensuring that no attendees have any impediment to entering Scotland. VisitScotland will not replace any lost, mutilated, or stolen tickets, travel vouchers or certificates and VisitScotland will have no liability in relation to any costs or expenses that may be incurred in connection with any lost, mutilated, or stolen tickets, travel vouchers or certificates.
3.5. The provision of all travel, accommodation, van or car hire, transportation and other items that are provided and/or facilitated by VisitScotland pursuant to the VisitScotland Contribution will be subject to the relevant operator's terms and conditions, and the Content Creator will indemnify and keep VisitScotland indemnified on demand from and against all charges, costs, claims, expenses, demands and/or liability that VisitScotland and/or any of its employees, officers, agents, contractors or partners may suffer or incur in connection with any breach, negligence, default and/or act or omission by the Content Creator (or any of its employees, officers, agents, contractors or partners) in connection with any of the items that are provided and/or facilitated by VisitScotland pursuant to the VisitScotland Contribution.
4. Content of Project Deliverable Material
4.1. The Content Creator represents, warrants and undertakes to VisitScotland that:
4.1.1. the Content Creator own all rights in and to the Project Deliverable Material;
4.1.2. the Content Creator has obtained all consents, permissions and releases required to allow the names, representations, images and likenesses of all person(s), product(s) and/or place(s) or other items featured in any Project Deliverable Material to be published into the public domain without restriction;
4.1.3. the Project Deliverable Material does not violate or infringe upon the rights of any third party (including, but not limited to, any rights of copyright, trade mark, privacy or other intellectual property rights);
4.1.4. all Project Deliverable Material can be utilised by VisitScotland and its agents, suppliers and partners across all channels and media (for example, images supplied for print can be utilised in online and vice versa);
4.1.5. the Project Deliverable Material contains nothing defamatory, obscene or otherwise unlawful, and that the Content Creator does not breach any confidence or invade the privacy of any person and is not in breach of any legislation;
4.1.6. the Project Deliverable Material does not breach, or risk being in breach of any UK law or other legal duty or obligation owed by the Content Creator and/or VisitScotland; and
4.1.7. The Content Creator will disclose and make its relationship with VisitScotland clear in the Project Deliverable Material (for example, by tagging VisitScotland in the branded content section (or equivalent) of all content on social media and making it clear that the content is an ‘#AD’ by stating this at the start of any caption on social media and on individual Instagram stories.
4.1.8 The Project Deliverable Material is true and accurate and not misleading in any respect.
4.2. Subject to clause 4.3, the Content Creator agrees to submit all Project Deliverable Material to VisitScotland for approval prior to its publication or disclosure to any third party. The Content Creator agrees not to publish or otherwise make available to any third party (and shall not permit any other person to publish or otherwise make available to any third party) any Project Deliverable Material without the prior written consent of VisitScotland.
4.3. If and to the extent expressly authorised to do so by VisitScotland, the Content Creator may be permitted to publish periodic posts on its agreed Instagram, Twitter and/or Facebook accounts in connection with the Project, provided that:
4.3.1. the content of all such posts complies with the requirements of these Terms and Conditions, including, but not limited to, all of the requirements that apply to Project Deliverable Material under clause 4.1;
4.3.2. the Content Creator uses the relevant social media hashtags as specified by VisitScotland and/or its partners (e.g. #ScotSpirit and/or #VisitScotland) and tags the relevant social media channels or accounts as specified by VisitScotland and/or its partners (e.g. @VisitScotland); and
4.3.4. without prejudice to VisitScotland's other rights and remedies under the Contract, the Content Creator will delete any post(s) on VisitScotland's request where VisitScotland (acting reasonably) considers that the Content Creator has failed to comply with the terms of this clause 4.3 in connection with the relevant post(s).
4.4. The Content Creator shall fully indemnify and keep indemnified VisitScotland on demand from and against all costs, claims, expenses (including reasonable legal expenses), liability, losses or damage that VisitScotland and/or its agents, contractors, representatives and/or partners may suffer or incur as a result of or in connection with any breach or failure by the Content Creator to comply with any of the terms of this clause 4.
5. Intellectual Property Rights
5.1. Subject to clause 5.2, the parties agree that the Content Creator shall own all IPRs in and to the Project Deliverable Material (except to the extent that the Project Deliverable Material comprise or contain any VisitScotland Material, as all VisitScotland Material shall, for the avoidance of any doubt, continue to be owned by VisitScotland).
5.2. The Content Creator hereby grants to VisitScotland (and VisitScotland's suppliers, agents and partners) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence to use all of the Project Deliverable Material in connection with VisitScotland's marketing activities, operations and/or the promotion of tourism in Scotland.
5.3. VisitScotland hereby grants to the Content Creator a non-exclusive, worldwide, royalty-free licence to use the VisitScotland Material (solely in the form and medium agreed in advance with VisitScotland) solely in connection with the relevant Project Deliverable Material that has been approved by VisitScotland in accordance with clause 4.2 (and only for such period as is authorised by VisitScotland).
5.4. Each party (the "Indemnifying party") shall at all times indemnify the other party (the "Indemnified party") and keep the Indemnified party indemnified on demand from and against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by the Indemnified party arising from or in connection with any claim that the Indemnified party’s possession and/or use of any IPRs provided and/or made available by the Indemnifying party infringes the intellectual property or other rights of a third party.
6.1. Nothing in this Contract shall exclude or restrict: (a) either party’s liability for death or personal injury resulting from its negligence; (b) any liability of either party which cannot be restricted or excluded under applicable law; and/or (c) either party’s liability in relation to fraud by that party or its employees.
6.2. Subject to clause 6.1 and clause 6.3, the parties agree that:
6.2.1. neither party will be liable to the other party for any: (a) loss of anticipated savings or profits; loss of profit; loss of revenue; loss of contracts; loss of goodwill; loss of data; loss of computer time; and/or loss of management time; and/or (b) loss which is indirect, special, consequential or economic loss (whether or not in practice it arises as a direct and natural result of a breach of this Contract);
6.2.2. each party’s liability under and/or pursuant to any indemnity granted by that party in this Contract shall not exceed an amount of £500,000 in respect of each event or series of connected events; and
6.2.3. subject to clause 6.2.2, the total aggregate liability of each party to the other party under and/or in connection with this Contract (whether for breach of contract, delict (including negligence) or otherwise) shall not exceed £50,000.
6.3. Clause 6.2 is without prejudice to (i) VisitScotland's obligation to provide the VisitScotland Contribution in accordance with this Contract and (ii) the Content Creator's obligation to pay the VisitScotland Costs in the circumstances described in clause 7.4, neither of which shall be excluded or restricted by clause 6.1 and which shall not be counted towards any cap on the relevant party's liability under clause 6.2.
7. Term and Termination
7.1. This Contract shall commence on the Effective Date and shall continue, subject to earlier termination in accordance with its terms, until each party has performed all of its respective obligations in respect of the Project.
7.2. Either party may terminate this Contract with immediate effect on providing written notice to the other party in the event that:
7.2.1. the other party is in material breach of any of its obligations under this Contract and has not remedied such material breach (where it is capable of being remedied) within thirty (30) days of receipt of notice specifying such breach and requiring it to be remedied; and/or
7.2.2. 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.
7.3. Without prejudice to its rights under clause 7.2, VisitScotland may terminate this Contract:
7.3.1. at any time (and for any reason) on providing not less than one month’s prior written notice to the Content Creator;
7.3.2. with immediate effect if VisitScotland becomes aware that the performance of all or any part of this Contract is or is likely to be in contravention of any Laws; and/or
7.3.3. with immediate effect if it comes to VisitScotland's attention that the Content Creator has committed an act or omission or has become involved in a situation which in VisitScotland's reasonable opinion has (or is at real risk of having) a material adverse effect on VisitScotland's reputation or standing and/or a material adverse effect on the reputation or standing of Scotland and/or the Scottish tourism industry.
7.4. In the event that this Contract is terminated (for any reason) prior to the date that the Content Creator has provided all of the Project Deliverable(s) to VisitScotland's reasonable satisfaction, the Content Creator shall pay to VisitScotland (within 30 days of VisitScotland's demand) the full amount of the VisitScotland Costs (being the amount set out in VisitScotland's demand pursuant to this clause 7.4).
7.5. Termination of this Contract shall not affect accrued rights and obligations of the parties under this Contract at the date of termination or any provisions in this Contract that will expressly or by implication survive such termination. Without prejudice to the generality of the preceding sentence of this clause 7.5, the parties acknowledge and agree that clauses 2.3, 3.3, 3.4, 3.5, 4, 5.1, 5.2, 5.4, 6, 7.4, 7.5, 8 and 9 shall survive expiry or earlier termination of this Contract.
8.1. Subject to clauses 8.1 and 8.3, each party (the “Receiving party”) will treat, and shall ensure that their respective employees, sub-contractors and agents shall treat as secret and confidential all Confidential Information received from the other party (the “Disclosing party”) and shall not use or disclose any such Confidential Information except as strictly necessary for the purpose of exercising, enforcing and/or performing its rights and obligations under this Contract. The Receiving party will ensure that it shall not, and will ensure that its respective employees, sub-contractors and agents shall not, at any time for any reason (save as may be necessary for proper performance or enforcement of this Contract) disclose or permit access to such Confidential Information to any third party.
8.2. Clause 8.1 shall not prevent the disclosure by either party of Confidential Information of the other party which: (a) is in or enters into the public domain otherwise than by breach of this Contract; (b) the Receiving party receives from an independent third party having the right to disclose the same; (c) the Receiving party can show (to the reasonable satisfaction of the other) was in its possession by being recorded in its files or records prior to the date of receipt from the Disclosing party; or (d) the Receiving party is required by law to disclose or is required to disclose to any court or other competent authority, provided that the Receiving party will use reasonable endeavours to provide prior notice of the same so that the Disclosing party shall have the opportunity to make any submissions to the Receiving party and/or such court or other competent authority.
8.3. The Content Creator acknowledges that VisitScotland, as a public sector body in Scotland, is subject to the requirements of certain access to information legislation, including the Freedom of Information (Scotland) Act 2002, the Access to Environmental Information (Scotland) Regulations 2004 and the Public Services Reform (Scotland) Act 2010 (the “Information Laws”). The Content Creator acknowledges that VisitScotland may be obliged under the Information Laws to disclose information relating to the Content Creator. The Content Creator acknowledges that VisitScotland will be responsible for determining in VisitScotland’s absolute discretion whether any information requires to be disclosed in accordance with the provisions of the Information Laws, and that nothing in this Contract shall prevent VisitScotland from disclosing (and VisitScotland shall not have any liability to the Content Creator in connection with the disclosure of) any information pursuant to the Information Laws.
9.1. Neither party shall be deemed to be in breach of this Contract, or otherwise be liable to the other party, by reason of any delay in performance, or non-performance, of any of its obligations under this Contract to the extent that such delay or non-performance is due to any circumstances beyond the reasonable control of that party and of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
9.2. Nothing in this Contract is intended to nor shall create any partnership, joint venture or agency, the parties being with respect to one another independent contractors.
9.3. The Content Creator shall not be entitled to assign, novate, sub-contract or otherwise transfer the whole or any part of its rights or obligations under this Contract without the prior written consent of VisitScotland.
9.4. The illegality and/or unenforceability of any provision or part of this Contract shall not affect the enforceability of the remainder of this Contract.
9.5. Nothing in this Contract creates or is intended to create any right enforceable by any person that is not a party to this Contract.
9.6. This Contract constitutes the entire agreement between VisitScotland and the Content Creator in connection with its subject matter and supersedes any prior agreements or arrangements between VisitScotland and the Content Creator in connection with the subject matter of this Contract.
9.7. Each party acknowledges that, in entering into this Contract it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Contract or not and whether made innocently or negligently) other than as expressly set out in this Contract.
9.8. This Contract shall be governed and construed in all respects in accordance with the laws of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish Courts in connection with any disputes arising out of or in connection with this Contract.