Marketing Services Agreement - Terms and Conditions
Marketing Services Agreement 24 Sep 2019 Forward
In these Terms and Conditions, unless the context otherwise requires:
“The Company” means Growthlabs Consultants Ltd, registered at Jubilee House 3 The Drive, Great Warley, Brentwood, United Kingdom, CM13 3FR Company No. 10528988 Tel: 0345 4750700.
“The Customer” means the party as defined in the Schedule.
“Digital Marketing” means the design, creation or placement of advertising or web content on behalf of the Customer on the internet on any publishing medium. This may also include the provision of software or other marketing activity delivered electronically including email marketing.
“Materials” means any logo, design, web page, article, publication or marketing collateral created by The Company on behalf of The Customer.
“Marketing Campaign” means services set out in the Schedule that may include Telemarketing or Digital Marketing and commencing within a maximum of thirty (30) days of the date of agreement.
“The Services” means the marketing services to be provided by The Company and as outlined in the Schedule of Services or as agreed in subsequent correspondence.
“Commencement Date” means the agreed date from which the services will be provided as agreed and commencing no later than thirty (30) days after the date of signature of this agreement.
“Confidential Information” means all secret or confidential commercial, financial and technical information, trade secrets, computer software, and other information in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it;
“Force Majeure” means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than as to payment) under these Terms and Conditions;
“Insolvency Event” means any notice, petition, resolution or order relating to the winding up or dissolution, administration or bankruptcy being presented or made or any steps being taken with a view to a voluntary arrangement or other assignment or arrangement with any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness, or if the other party has reasonable grounds for believing that any of the foregoing is imminent. If any of the foregoing occurs in relation to a partner in any of the parties hereto it will be deemed to occur in relation to that party;
“Initial Period” The period of time for which the services will be provided as set out in the schedule before they may be amended or terminated (subject to notice)
“Notice Period” The period of time for which the services will continue to be provided as agreed in the Schedule prior to cancellation after the receipt of notice. This period is ninety (90) days.
The Customer commits to undertake and pay The Company for the full schedule of services and for the Initial Period specified within the Campaign Agreement, plus the Notice Period. For a Marketing Campaign that continues beyond the Initial Period the parties will remain bound by these Terms & Conditions and agreed schedule of services and pricing. An on-going Marketing Campaign will run until cancelled by The Customer by providing advance notice to The Company of its cancelation. In the event that advance notice of less than the Notice Period is given by The Customer to The Company of cancellation or termination then charges relating to the Notice Period for the services as set out in the Schedule will be due even if services are required to cease prior to this date. In the event that notice is given to terminate a campaign prior to the completion of the Initial Period, then charges for the full amount of the Initial Period and Notice Period will be due even if services are required to cease prior to this date. When notice has been received the Company will raise an invoice for immediate payment of any remaining charges applicable during the notice period. During the notice period the Company reserves the right to continue The Services while withholding details of results generated until all outstanding invoices are discharged in full.
- Campaign Results
The Company does not guarantee the results of any campaign or the quantity of activities or results that will be achieved during a campaign. Any forecast of outcomes or deliverables for a campaign are estimates made in good faith and do not in any way constitute a guarantee.
- Data Quality
When sourcing data for The Customer The Company will use reasonable endeavours in order to identify and purchase good quality data from reputable sources on their behalf. The Company cannot be held responsible for the quality of data purchased as an agent of The Customer.
- Payment terms
- The Company shall invoice upon receipt of the signed agreement on payment terms as per the agreement. Invoices will subsequently be raised on a monthly basis in advance. In certain circumstances and for some services the Company shall require payment in advance, stage payments, or payment by Direct Debit.
- Unless alternative arrangements are made in advance website design and development projects are undertaken on the basis that an invoice is raised for the entire quoted value of the project prior to commencement. Payment of 33 percent (33%) of this amount is required prior to commencement of work, followed by a further 33 percent (33%) on approval of the final designs of the required template pages. The final 33 percent (33%) of the charges (plus all charges for any additional work requested by The Customer during the project) must be received as cleared funds prior to the website being uploaded and made live or released to The Customer.
- The Company reserves the right to charge interest on payments outstanding after the due date for payment at the rate of 5% per month. In the event of outstanding payments The Company reserves the right to cease the provision of services and make additional charges for delays.
- All rates are quoted exclusive of VAT and any similar duty or tax, which will be included in all relevant invoices.
- The Company shall be entitled to immediately terminate this agreement in the event that The Customer has failed to abide by the payment terms.
- If at any stage during the Marketing Campaign invoices are overdue for payment the Company reserves the right to continue The Services while withholding details of results generated until all outstanding invoices are discharged in full.
- If at any stage during the Marketing Campaign invoices are overdue for payment the Company reserves the right to withhold access to any information portal or software provided or to suspend publication or hosting of Digital Advertising or websites.
- The costs of recovery action necessary in order to receive payment of overdue invoices will be recharged to the Customer at the rate of £100 per solicitor letter and £500 in respect of an application to court or for such greater amount of costs that are incurred.
Pricing may be adjusted by The Company from time to time subject to the provision of 1 month notice in advance to the Customer
- Digital Marketing
- Where operating a campaign on behalf of The Customer the selection of publishers, advertisements and allocation of the budget will be at the discretion of the Company and may change from time to time, even during a campaign.
- The “cost per visit”, “cost per impression” or “cost per click” charged by the Company to the Customer will vary depending upon factors that may include, but are not limited to the publisher selected, the time of day, the competitive nature of particular keywords or phrases and other factors.
- When targeting particular geographic areas or other specific features relevant for the Customer the Company is in no way responsible for the accuracy of such targeting.
- Employment of Company Staff
- The Customer shall not in any way cause, enable, encourage or induce any employee to leave the employment of The Company.
- In the event an employee of The Company is employed by The Customer, or by any linked, affiliated or associated organisation within 12 months of the cessation of this agreement The Customer agrees to pay The Company £10,000, or 50% of the employee’s starting salary, whichever is the greater.
As far as is reasonably practicable, The Company agrees to keep secret any Confidential Information concerning The Customer’s affairs which have come to knowledge of The Company by reason of its provision of services to The Customer. For the avoidance of doubt, the details of names, addresses, telephone numbers or other information relating to third party companies or their employees where this information is collected or obtained during the provision of The Services do not constitute Confidential Information.
- Force Majeure
The Company shall not be liable in any way for any delay or failure or for the consequences of any delay or failure, in performing any of its obligations under this Agreement if such delay or failure is due to any cause whatsoever beyond the reasonable control of The Company, and shall be entitled to a reasonable extension of the time for performing such obligations.
- Company Rights and Obligations
- The Company will not be liable to The Customer in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss (including loss of profits or any indirect or consequential loss of any kind) or damage which The Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of these conditions by The Company its servants or agents.
- If The Customer requires services which are not detailed in the Schedule, The Company will upon request provide a quotation but will otherwise charge for such service at the rates specified in The Company’s prevailing price list.
- Account Access and Account Information
- Where any software system or information portal has been set up, or is managed or operated by the Company for or on behalf of the Customer access will only be granted by The Company to The Customer for the duration of the contract. The setup of any software system or information portal by the Company on behalf of the Customer and any provision of management information, statistics or analysis to The Customer remains the Intellectual Property of The Company. It may not be shared with any Third Party organisation without the express written authority of a Director of The Company.
- The Company will provide The Customer with opportunities to review the designs, layout and content of Materials at various stages during the development and once completed. The Customer agrees to review these Materials promptly and comprehensively and to provide feedback and revisions in a timely fashion. Materials will be deemed to be accepted and approved unless The Customer notifies The Company of revisions within ten (10) days of the date the materials are made available to The Customer. If the Customer wishes to make revisions to materials that have either already been approved or where revisions have already been received by The Customer then additional charges will apply. The Customer agrees to delegate a single individual with responsibility for approval of each stage of the development of Materials and any website development, and as the primary contact to aid The Company with progressing the creation of them in an expedient and efficient manner.
- During the project, The Company may require data, logos, brand guidelines, website content, text, images, video or other such items from The Customer. Failure to provide the required items may result in delays to the project and additional charges. In the event that materials are not provided within 30 days of a request to do so the Company reserves the right to close the project and the balance of payments will become due. Any text will be provided by The Customer in an electronic format via e-mail and all photographs, graphics, videos or other material will be provided in high-quality electronic format suitable for web publication.
The Company makes every effort to ensure web pages can be viewed by the majority of visitors. The web pages The Company creates are designed to work with the most popular current browsers (e.g. Firefox, Internet Explorer, Google Chrome, etc.) and devices. The Company cannot guarantee correct website functionality in all circumstances or where new software, operating systems or devices have been released after completion of the website.
- The Customer retains the copyright to data, files, text and graphics provided by The Customer, and grants The Company the rights to publish and use such material. The Customer must obtain permission and rights to use any information or files that are copyright to a third party. The Customer is further responsible for granting The Company permission and rights for use of the same and agrees to indemnify and hold harmless The Company from any and all claims resulting from The Customer’s negligence or inability to obtain proper copyright permissions.
- A link to The Company will appear in either small type or by a small graphic at the bottom of web pages. If a client requests that the design credit be removed, a nominal fee of £500 will be applied. The Customer agrees that the Materials developed for The Customer may be presented in The Company’s portfolio. The Company may identify the Customer by name or by their logo as a client of The Company.
- If The Customer’s Materials is to be installed on a third-party server, The Company must be granted temporary read/write access to The Customer’s storage directories which must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server. The Company cannot accept responsibility for any alterations caused by a third party occurring to The Customer’s Material once installed. Such alterations include, but are not limited to additions, modifications or deletions.
- The Company may purchase domain names on behalf of The Customer. Payment and renewal of those domain names is the responsibility of The Customer. The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of The Company. The Customer should keep a record of the due dates for payment to ensure that payment is received in good time.
- All Materials remain owned by The Company until the full payment of all charges and costs associated with the creation of the Materials has been met by The Customer. If the full payment of the charges associated with the creation of the Materials has not been received within 30 days of the due date then the company may use, dispose of or resell the Materials as they see fit.
- Customer’s Warranties
- The Customer warrants that it is contracting as principal and not as agent and that it is entitled to deal with this contractually binding Agreement.
- If The Customer shall at any time fail to comply with its obligations under this Agreement, or if The Customer experiences any Insolvency Event, The Company may suspend or terminate this Agreement with immediate effect by notice in writing to The Customer.
- Data Protection Regulations
- The Parties acknowledge that for the purposes of the Data Protection Legislation the Customer will act as Data Controller and the Company will act as Data Processor. The Company is authorised to undertake the data processing necessary to provide the services outlined in the Schedule and those agreed between the parties from time to time.
- The Company will comply with all applicable Data Protection Legislation as it applies from time to time.
- The Company will process Personal Data only in accordance with the schedule or the provision of services agreed between the parties from time to time unless it is required to do otherwise by Law
- The Company will take reasonable steps to ensure that it has in place protective measures in order to protect against data loss taking into account the nature of the data to be protected, harm that might result from any data loss, and cost of implementing protective measures.
- The Company will take all reasonable steps to ensure the reliability and integrity of any Company personnel who have access to personal data, and limit access to personal data only to those for whom it is necessary for the provision of the Services.
- The Data Controller remains responsible for undertaking any required Data Protection Impact Assessment. The Company shall provide any reasonable assistance to the Customer in undertaking any Data Protection Impact Assessment.
- The Company will notify The Customer as soon as reasonably practical in the event that they become aware of a Data Loss Event or any communication from the Information Commissioners Office in respect of the Personal Data processed under this Agreement or any complaint in respect of either parties obligations under the Data Protection Regulations.
- The headings in these Terms and Conditions are for convenience only end will not affect its interpretation.
- These Terms and Conditions are personal to the parties, and The Customer will not assign or transfer its rights and liabilities hereunder or any of them, or sub-Contract or otherwise delegate any of its obligations without the prior written consent of The Company.
- These Terms and Conditions will not be taken as creating or evidencing any agency or partnership between the parties.
- If any provision is found to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions, which will remain in full force and effect.
- The rights and remedies of either party will not be diminished, waived or extinguished by the granting of any indulgences, forbearance or extension of time granted by neither such party to the other nor any failure of or delays by the said party in ascertaining or exercising any such rights or remedies.
- These Terms and Conditions constitute the entire agreement between the parties and supersede all prior agreements understandings or discussions between the parties.
- All notices under these Terms and Conditions will be in writing and may be served by first class post addressed to the other party at the address given in these conditions or at such other address as a party will from time to time by notice in writing give to the other party. Every such notice will be deemed to have been served if served by first class post at the expiration of 2 Business Days after despatch of the same. In proving service it will be sufficient to show in the case of a letter that it was duly addressed and posted in the manner provided.
- For the avoidance of doubt, nothing in these Terms and Conditions will confer on any third party any benefit or the right to enforce any provision of these conditions
- All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires.
- These Terms and Conditions will in all respects be governed by and construed in accordance with the Law of England and Wales.