All work undertaken by the Agency is subject to these Terms, which the client is deemed to accept upon instructing the agency to undertake work of any nature.
Client: means the Company giving instructions to the agency.
Contract: means each and every contract concluded between AGENCY and CLIENT on these terms as a result of AGENCY accepting CLIENTS instructions.
This Agreement is made on the XX day of Month 20XX.
Name of address, Company Registration no XXXXXXX and/or Registered Charity No. XXXXXX
Mike Colling and Company Limited of 30 Gresse Street, London W1T 1QR, Company registration no. 04303229
CLIENT hereby appoints AGENCY as its direct marketing agency to provide Media Planning & Buying Services (the “SERVICES”) as outlined in Schedule 1 (TBA).
Agency undertakes that it shall provide the Services using due care and diligence at all times.
shall not amend or modify such content in any way without CLIENT’s express written approval.
Where AGENCY has submitted a quotation to CLIENT this quotation will be open for acceptance for 30 days, or such other period as may be stated in the quotation. AGENCY shall by notice be entitled to withdraw the quotation at any time prior to its acceptance by CLIENT.
Certain work is undertaken on the understanding that the quotation provided is an estimate only, and that the final amount payable will be ascertained upon verification of final media rates, or otherwise ascertaining the amount of work involved.
All costs incurred by AGENCY on behalf of CLIENT shall be approved in advance by CLIENT using a purchase order form. CLIENT may sign and return a paper copy of such form, or send a facsimile copy, or e-mail to AGENCY quoting the purchase order number, amount and date and issuing approval to proceed.
CLIENT approval of plans or proposals, noted in a contact report, will be AGENCY’s authority to contract for services or goods proposed.
If CLIENT wishes to change, reject, defer, cancel or stop any or all work- in – hand or intended to be put in-hand by AGENCY that was previously approved by CLIENT, AGENCY will take all reasonable steps to comply, provided it can do so within contractual obligations to third parties. CLIENT shall indemnify AGENCY for all resulting losses, liabilities and claims suffered by AGENCY and pay AGENCY fees and reimburse expenses up to such time.
AGENCY will charge fees and/or commission as outlined in Schedule 1 (TBA).
Research, third party costs, VTR/Playout costs and other materials of services as may be prepared or suggested, will be the subject of a written estimate. CLIENT’s prior approval of such an estimate will be AGENCY’s authority to incur the costs specified in the estimate. Such costs will be invoiced separately from the media invoices.
AGENCY shall be reimbursed for any miscellaneous and out of pocket expenses, including travel expenses, reasonably incurred in the performance of the Services where travel involved is the ASBOF or BASBOF levy where appropriate on all media invoices – this is currently calculated at 0.1% of client cost.
Media invoices will be issued during the month of activity. Such invoices are payable by CLIENT by 10th of the month following the date of invoice.
Failure to pay by the due date will lead to automatic surcharges of 3% of invoice value unless a valid query has been notified to us in writing by 5th of the month following.
If surcharges are levied by a third party supplier against AGENCY due to late payment by CLIENT, CLIENT shall immediately reimburse AGENCY the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue account.
All other charges and expenses payable to AGENCY by CLIENT will be invoiced on a monthly basis. Such invoices are payable by CLIENT within 30 days of receipt of invoice.
If AGENCY’s credit insurers decline to provide cover in respect of CLIENT or the cover obtained is insufficient for the amount of work in progress, the AGENCY will be entitled at any time to require CLIENT to put AGENCY in funds in respect of any amounts due or becoming due to AGENCY. Failure to provide such alternative security will entitle the AGENCY to terminate the contract forthwith.
Where the full amount of the invoice cannot be ascertained AGENCY shall be entitled to submit estimated invoices, with debit/credit reconciliation being made as soon as is practicable thereafter.
Amounts payable by CLIENT will be subject to VAT at the applicable rate in accordance with the AGENCY’s understanding of HMRC rules and regulations in force at the time. CLIENT’s responsibility for VAT is not affected by any omission of VAT from quotation or invoice.
All accounts remaining unpaid by the due dates under 6.2 will incur a charge to interest at 4% per annum above Barclays Bank plc base rate from time to time, accruing daily.
All payments due to be made in respect of any invoice rendered by AGENCY to CLIENT shall be made without deduction, legal or equitable set off or counterclaim.
In the event that prepayment is required by a third party supplier, AGENCY shall present an interim invoice to CLIENT, and subject to the prior written consent of CLIENT, payment in full will be received from CLIENT immediately upon presentation of such invoices by AGENCY.
Payments will be made by direct bank transfer in (UK) pounds sterling. Details of Bank accounts will be given on invoices.
Projections and forecasts provided by AGENCY in relation to the Contract are estimates only. Whereas AGENCY will endeavour to ensure that all estimates are reasonably accurate it gives no warranty that the performance indicated by reference to response rates, conversion, income, profit or otherwise will be achieved. AGENCY will perform the Contract with reasonable care and skill and within a reasonable and specified timescale, except as required by law:
AGENCY shall not be liable for loss or damage suffered or incurred by CLIENT as a result of any delay or failure in mailing, emailing, delivery or reproduction of any message, or in meeting targets or start dates for advertising or for errors or otherwise arising out of AGENCY’s performance of any contract, save where it is due to patent default or neglect on its part. AGENCY’s liability for negligence or breach of contract in respect of each event or series of connected events shall be limited as follows:
Liability for physical damage to tangible property shall be limited to such amount as may be specified from time to time in any special written terms or, if not specified, to the replacement value of the property.
In the event of any loss or damage to hard copy, magnetic media, any other media of CLIENT, AGENCY’s liability shall be limited to replacing the physical goods, and not to the value of the contents. CLIENT is strongly advised to take copies of any data or contents, or to insure the same, before making delivery to AGENCY.
Liability for all other loss or damage shall be limited to such amount as may be specified from time to time in special written terms (as being a reasonable estimate of a clients foreseeable direct loss) or, if not specified, the amount payable by fees and commissions in relation to the Contract which is in dispute (excluding third party expenses and VAT).
In no event will AGENCY be liable for:
Any special, indirect, incidental, or any other consequential losses or damages (whether arising from negligence or breach of contract) including loss of contracts; or
Any loss or damage arising out of any failure by CLIENT to keep full and up-to-date security copies of any computer programmes and data that it uses in accordance with best computer security practice; or
Any loss or damage suffered as a result of any virus or other hostile computer programme being introduced into the CLIENTS computers or systems save where any such loss or damage is the result of patent default or negligence on the part of the AGENCY. All contracts are entered into on the basis that the CLIENT accepts the risks outlined above, or has effected insurance against them.
AGENCY shall not in any event be liable for any loss or damage arising as a result of circumstances beyond its control (including strikes and industrial action).
No action may be commenced by CLIENT against AGENCY arising out of or in connection with any services or products supplied, or due to be supplied by AGENCY more than twelve months after the CLIENT first became aware, or ought reasonably to have become aware, of the facts constituting that course of action.
The liability of AGENCY to CLIENT in respect of any third party contract shall be no greater than the amount reasonably recoverable from that third party.
AGENCY shall not be liable for any losses, liabilities or damages, costs, claims, charges and expenses, suffered or incurred by CLIENT as a result of any acts or omissions of a third party where such third party had been instructed or nominated to act by CLIENT or any other third party in connection with the Contract. For the avoidance of doubt it is immaterial whether the AGENCY has entered into a contract with the third party.
CLIENT shall indemnify AGENCY against all losses liabilities, damages, costs and claims charges and expenses suffered or incurred by AGENCY in connection with any acts or omissions of a third party nominated or instructed by CLIENT to act in connection with the performance of this Contract.
AGENCY act as principal at law in all its contracts and under this agreement.
Either party may terminate this Agreement forthwith by notice in writing to the other party (“The Defaulting Party”) under the following conditions:
If the Defaulting Party commits a material breach of any of its obligations under this Agreement and fails to rectify the same (where such a breach is capable of rectification) within two weeks of receiving written notice thereof from the other party; or
If the Defaulting Party shall cease or threaten to cease to carry on its business or substantially the whole of its business; or
If the Defaulting Party becomes or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement with its creditors; or
If a liquidator, receiver, administrator, administrative receiver, manager, trustee, or similar officer is appointed over any of the assets of the Defaulting Party.
Upon termination of this Agreement, and provided that CLIENT has performed all of its obligations under this Agreement, AGENCY shall immediately:
Transfer to CLIENT all property and materials previously charged or chargeable;
Return to CLIENT information and data provided by CLIENT on their business.
Upon termination of this Agreement under clause 9, CLIENT shall pay AGENCY for any undisputed and previously approved expenditure which has been committed on behalf of CLIENT and which cannot be recovered.
If no length of notice is specified in any special written terms the period of notice shall be three months.
During the period of any contract, and for a period of 12 months following termination CLIENT will not solicit or interfere with, commission work from or attempt to entice away from AGENCY any employee who is contracted to work for AGENCY, or who was so contracted during the 12 months immediately preceding termination.
If due to war, strikes, industrial action short of a strike, import or export embargo, lockouts, accidents, fire, blockade, flood, natural catastrophes or other acts of God, AGENCY fails to perform any of its obligations under this Agreement, AGENCY shall not be held responsible for any loss or damage, which may be incurred as a result of such a failure. Should the force majeure circumstances continue for more than one month, AGENCY shall have the option of terminating this agreement immediately without further liability other than such liabilities as have already accrued when the Term ends.
AGENCY shall keep all information obtained or received by it for the purposes of performing the Contract, and all information or data given to it by CLIENT, or anyone acting on their behalf (and the drafts thereof) strictly confidential during the lifetime of this Agreement and thereafter. AGENCY shall use its reasonable endeavours to ensure that all such information and advice is not subject to unauthorised copying, disclosure or use.
AGENCY shall not release any information or marketing materials regarding CLIENT to any other third parties, without prior written consent of CLIENT.
AGENCY shall be free on expiration of a period of six months following termination of this Agreement to use as it sees fit any general or marketing intelligence in the field of CLIENT product or service which AGENCY has gained in the course of its appointment subject to the restrictions.
All concepts, ideas, rates, projections and forecasts submitted by AGENCY are of a confidential nature and are submitted to CLIENT on the understanding that they are considered by CLIENT in the strictest confidence and that no use shall be made of the said concepts, ideas, rates, projections and forecasts, including communication to a third party, without AGENCY’s express permission.
CLIENT will indemnify AGENCY against any liability it may incur as a result any claims or proceedings brought against it based on materials originating from CLIENT. Ownership rights in Agency Materials provided outside of the Scope of Services in Schedule 1 vest in the AGENCY unless different arrangements are made in writing.
The Intellectual Property Rights of the User Interface and any elements which form part of the generic functionality of ART™ including any source or object code or methodology together with any related materials or documentation shall be and remain vested in AGENCY.
This Agreement to provide any output data and/or reports from ART™ operates only as a licence and does not bestow any ownership upon the CLIENT.
Such a licence gives permission to reproduce but not to adapt the output data or reports generated from ART™
No assignment shall be deemed to have taken place.
This Agreement contains the entire agreement between the parties, and may only be varied by the written agreement of both parties, and signed by a director of AGENCY and CLIENT.
These Terms and each Contract shall be governed by and construed in accordance with English law. Both parties submit to the exclusive jurisdiction of the courts of England.