1. DEFINITIONS AND INTERPRETATION

1.1. “Agreement” means the ‘Cover Sheet’, these ‘Terms of Engagement’ and any Schedules or Annexes attached hereto.
1.2. “Belmond Group” means Belmond Ltd., the entities in which it has an interest of 25% or more, from time to time and in each case any train, hotel, cruise or property owned or controlled by any such entity, in each case from time to time (including but not limited to the Company);
1.3.  means the cover sheet of this Agreement;
1.4. “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“EU GDPR”) and the EU GDPR as amended and incorporated into UK law, as applicable.
1.5. “Image Rights” means the name, nickname, voice, signature, autograph, likeness, characteristic, still or moving image, picture, logo of the Content Creator.
1.6. “Influencer Policy” means Company’s then-current ‘Content Creator and Promotional Partners Policy’, the current version of which is set out here.
1.7. “IPR” means copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), performers property rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
1.8. “Services” means the delivery of the Deliverables to the Company;
1.9. “Year” means a period of twelve (12) months commencing on the Effective Date or any anniversary of the Effective Date.
1.10. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.11. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.12. 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.
1.13. A reference to writing or written includes email but not fax.
1.14.  Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.15.  A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

2. GRANT OF RIGHTS

2.1. In consideration of the Fee (as listed in the Cover Sheet), the Content Creator shall deliver the Deliverables, and grant the rights set out in clause 8, throughout the Term in accordance with the terms and conditions of this Agreement.
2.2. Time is of the essence with regards to the Content Creator’s delivery of the Deliverables.

3. FEE

3.1. In consideration of the provision of the Deliverables to the reasonable satisfaction of Company, Company shall pay the Fee in accordance with the Payment Terms. Payment of a Fee shall only be made on receipt of a valid invoice.
3.2. Company shall be entitled to make any deduction, set off or withholding from any amount payable under this Agreement as required by any applicable law.
3.3. Save in respect of any disputed invoice, if Company fails to make a payment due to the Content Creator under this Agreement by the due date, then Company shall pay interest on the overdue sum at the rate of 2% a year above the Bank of England’s base rate from time to time from the due date until payment of the overdue sum, whether before or after judgment.

4. CONTENT CREATOR OBLIGATIONS

4.1. The Content Creator warrants, represents and undertakes that they:
 4.1.1. shall supply the Services in accordance with Company’s editorial and ethical standards and Company’s directions and instructions;
 4.1.2. shall supply the Services conscientiously and in a competent manner and to the full limit of the Content Creator’s skill and ability;
 4.1.3. shall render the Services on any days and times agreed with Company (including preparing themselves for any service days as necessary);
 4.1.4. shall act in a professional manner and provide the Services in co-operation with such other persons as Company may reasonably instruct;
 4.1.5. shall not engage in any conduct which in Company’s reasonable opinion brings the Content Creator or Company into public disrepute, scandal, contempt or ridicule or which may offend individuals or a group of the community or behave in any way that damages the goodwill or reputation of the Content Creator or Company;
 4.1.6. shall not make any defamatory or derogatory public statements about Company, its properties, its personnel or any products or services offered by Company or in relation to any third party;
 4.1.7. it shall not (and shall procure that no third party connected with the Services shall) make use of the words “Belmond”, “Orient” “Express” in any artwork or promotional materials relating to the Deliverables or in merchandise of any kind;
 4.1.8. shall at all times comply with the Influencer Policy if the Content Creator decides to post the Content to the Content Creator’s channels in addition to the Services provided to Company;
 4.1.9. shall not engage in any activity, practice or conduct which would constitute either a UK tax evasion facilitation offence or a foreign tax evasion facilitation offence under the Criminal Finances Act 2017 and shall comply with applicable tax laws with regards the provision of Services and Barters (if applicable);
 4.1.10. have disclosed in writing to Company any information concerning the Content Creator’s reputation or public image that may have an impact on Company’s decision to enter into this Agreement; and
 4.1.11. shall ensure that Company is entitled to fully use the Image Rights and the Deliverables for the purposes envisaged under this Agreement, and that any such use of the Image Rights and Deliverables shall not infringe the rights, including the IPR, of any third party.
4.2. Notwithstanding clause 4.1, upon the request of Company, the Content Creator agrees to immediately take down or remove any Deliverables from the Content Creator’s channels.
4.3. The Content Creator warrants that this Agreement does not conflict, and does not and will not constitute a breach of, any other agreement or undertaking to which the party is or may become a party and it will not during the Term enter into any agreement or undertaking that conflicts with the terms of this Agreement.

5. COMPANY OBLIGATIONS

5.1. During the Term, Company shall:
 5.1.1. provide all relevant instructions and editorial guidelines in relation to the creation and publication of the Deliverables;
 5.1.2. ensure any materials it provides to the Content Creator for use in the Deliverables shall not infringe the rights, including the IPR, of any third party.

6. REPRESENTATIONS AND WARRANTIES

6.1. Each party represents and warrants to the other that it has and will retain the authority and power to enter into this Agreement without obtaining the consent of any third party and to grant the rights and consents granted in this Agreement.

7. CONFIDENTIALITY 7.1. Neither party shall make any announcements to third parties about the engagement of the Content Creator by Company or the existence of this Agreement. Subject to clause 7.2, the parties shall keep in strict confidence the terms of this Agreement and all information of any kind which would be regarded as confidential by a reasonable person that has been disclosed by one party or its representatives to the other party or its representative, pursuant to this Agreement, whether before or after the date of this Agreement, and any other confidential information concerning Company’s or the Content Creator’s (as applicable) business, marketing plans, clients, customers, products or services (“Confidential Information”).
7.2. A party may disclose the other party’s Confidential Information: (i) to its employees, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out any obligations under this Agreement; and (ii) as may be required by law, court order or any governmental or regulatory authority having competent jurisdiction or authority. The parties shall each ensure that they and/or their employees, representatives, advisers, agents or subcontractors to whom it discloses such Confidential Information comply with this clause 7. The parties shall not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.

8. INTELLECTUAL PROPERTY

8.1. Content Creator assigns irrevocably to the Company all right, title and interest in the Deliverables.
8.2. The Deliverables shall not include any third party music or any other third party content unless otherwise agreed by Company in writing.
8.3. The Content Creator agrees to do such acts and execute such documents as Company may reasonably require to vest in or confirm to Company the IPR granted by the Content Creator to Company under this Agreement.
8.4. Neither party shall do anything or, permit anything to be done, which might reasonably be expected to bring the other, its trade marks or logos into disrepute or the value of the same to be diminished.

9. DATA PROTECTION

9.1. Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements that govern the use of data relating to identified or identifiable individuals and/or ePrivacy, including the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and the GDPR (and any laws implementing it), as amended or replaced from time to time and to the extent applicable to a party. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
9.2. Content Creator acknowledges and agrees that Company will collect and process the Content Creator’s personal data as data controller for legal, personnel, administrative and management purposes in connection with the Services in accordance with its Privacy Policy.

10. LIMITATION OF LIABILITY AND INDEMNITY

10.1. Nothing in this Agreement shall exclude or limit either party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused by its negligence; or (iii) any other liability which cannot be excluded or limited by law.
10.2. Subject to clause 10.1 above, in no event will either party be liable under or in connection with this Agreement whether in tort (including for negligence), breach of statutory duty, contract or otherwise for any: (i) loss of actual or anticipated savings, income or profits; (ii) loss of business or contracts; or (iii) special, indirect or consequential loss or damage of any kind.
10.3. Subject to clauses 10.1 and 10.2, Company’s total aggregate liability for all claims under or in connection with this Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise shall in no event exceed the lesser of: (i) the total Fees paid or payable by Company to the Content Creator under this Agreement; and (ii) £10,000.
10.4. The Content Creator shall indemnify and hold Company harmless from and against any and all losses, liabilities, demands, damages, costs and expenses of whatsoever kind or nature (including reasonable legal costs and expenses) and liabilities suffered or incurred by Company and/or the Belmond Group as a result of or in connection with a breach of any of clauses 4, 7, 8 and/or 9 of this Agreement by the Content Creator. The parties hereby acknowledge and agree that any and all losses suffered or incurred by the Belmond Group arising out of or in connection with this Agreement shall be deemed to be losses suffered or incurred by Company and that Company may be able to recover such losses as if they had been suffered or incurred by Company.

11. TERMINATION

11.1.  Either party may terminate this Agreement with immediate effect:
 11.1.1. if the other party commits a material breach of any of the terms of this Agreement and, provided that where such breach is capable of remedy, the offending party has been advised in writing of the breach and has not rectified it within 10 days of receipt of such notice;
 11.1.2. the passing by the other party of a resolution for its winding-up or the making by a court of competent jurisdiction of an order for the winding-up of the other party or the dissolution of the other party;
 11.1.3. the making of an administration order in relation to the other party or the appointment of a receiver or an administrative receiver over, or the taking possession or sale by an encumbrance of, any of the other party’s assets; or
 11.1.4. if the other party is declared bankrupt or makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally.
 11.2. Company may terminate this Agreement with immediate effect if:
 11.2.1. the Content Creator does anything or permits anything to be done that might reasonably be expected to bring Company or its properties, products, services, brands, trade marks or logos into disrepute (including by making any public statement which is defamatory, derogatory or disparaging of any of the same) or causes the value of the same to be diminished;
 11.2.2. the Content Creator engages in or publicly expresses support for conduct that is discriminatory on the basis of age, gender, sexuality, ability, race, religion or health; or
 11.2.3. the Content Creator fails to comply with the Codes or any applicable law or Platform Terms.
11.3. On termination or expiry of this Agreement (however arising):
 11.3.1. both parties shall meet to agree in good faith the value of the work completed given the agreed requirements taking into consideration the reasons for termination. Company may withhold the Fee or reclaim any part of the Fee that has already been paid in respect of any breach by the Content Creator of this Agreement based on any pro-rata Services performed or the diminution in value of any Deliverables or Image Rights;
 11.3.2. each party shall upon written request, return all Confidential Information and property belonging to the other; and
 11.3.3. the provisions of this Agreement which are expressly or impliedly intended to survive the termination or expiry of this Agreement shall survive such termination or expiry.

12. GENERAL

12.1.  No variation or amendment of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
12.2. Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
12.3. If a provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable or the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention; and the validity and enforceability of the other provisions of the Agreement shall not be affected.
12.4. This Agreement, together with any documents referred to in this Agreement (including the Content Creator Policy), constitutes the whole agreement between the parties as to its subject matter and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement or representation, of any person other than as expressly set out in this Agreement.
12.5.  The Content Creator shall not without the prior written consent of Company assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.6.  This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
12.7. Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
12.8. If there is an inconsistency between any of the provisions of this Agreement and the provisions of any documents referred to in this Agreement, including the Content Creator Policy, the provisions of this Agreement shall prevail.

13. NOTICES

13.1.  A notice given to a party under this Agreement shall be: (i) in writing in English; (ii) signed by or on behalf of the party giving it; (iii) sent for the attention of the person, at the address or the email address specified in the Cover Sheet of this Agreement (or to such other address either party has notified to the other); and (iv) delivered personally, sent by same-day commercial courier or by twenty four (24) hour recorded delivery with a copy also sent by email. Notice shall be deemed to have been delivered twenty four (24) hours after dispatch providing that a signature receipt is obtained; where no signature receipt is obtained, delivery shall be deemed to be forty eight (48) hours after dispatch.

14. DISPUTES

14.1.  If any dispute arises in connection with this Agreement, the Content Creator or their designated representative and an appropriately senior employee or officer of Company shall, within ten days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
14.2.  No party may commence any court proceedings or arbitration in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute in accordance with this clause 14.1 and either the provisions of this clause have been exhausted or terminated or the other party has failed to participate in the process, provided that the right to issue proceedings is not prejudiced by a delay.

15. GOVERNING LAW AND JURISDICTION

15.1.  This Agreement 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.
15.2.  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 this Agreement or its subject matter or formation.
15.3.  Nothing in clauses 14 or 15 shall prevent either party from seeking and obtaining preliminary or injunctive relief against the other party in any court of competent jurisdiction.