Effective Date:  5th April 2024

Hurst Group Limited – Terms and Conditions for Barter

Definitions

“Advertising” means any form of communication in which a product, brand or service is promoted to a viewership in order to attract interest, engagement, and sales.

“Advertising Materials” means all materials and methods used by a Client in the performance of the Client’s Advertising, including, without limitation, brochures, letters, print advertisements, internet advertisements, television and radio communications and other advertising, promotional and similar materials.

“Barter” means an agreement whereby a Client will make available goods and services in exchange or part-exchange for Advertising;

“Bartered Goods” are goods and services offered by the Client in exchange or part-exchange for Advertising, redeemable by any assignees as so requested by HGL;

“Client” means a person, company, partnership or legal entity that enters into a contract with HGL for the provision of services subject to these terms and conditions;

“Client Personal Data” means all information and data (including texts, documents, drawings, diagrams, images or sounds) owned by, licensed to (other than by HGL) or relating to the Client and/or any of its customers, which is in each case generated by, supplied to, or is otherwise retained by, HGL pursuant to or in connection with this agreement;

“Data Protection Legislation” means all applicable law, from time to time, relating to the processing of personal data and privacy including (to the extent applicable) the UK GDPR and the EU GDPR;

“Deadline” means the date HGL must send Advertising Materials through to the media owner for publication.

“EU GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament.

“HGL” means Hurst Group Limited and its subsidiaries to include Hurst Media Company Ltd, Hurst Media Agency Ltd and Hurst Media Labs Ltd, details contained below.

“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

1. The contract shall be deemed to have been made at the offices of HGL.

2. Acceptance of these terms and conditions may be effected by written confirmation (including by email or completed order form) from the Client to HGL. Acceptance of these terms and conditions by email to the Client will constitute a legally binding agreement between the Client and HGL.

3. By accepting these terms and conditions the Client acknowledges that this is a business-to-business contract and therefore is not subject to any statutory cooling off provisions and that the only rights of cancellation are those governed in these terms and conditions (see clause 22). All confirmed orders are final and the Client has no rights of cancellation upon written (including by email or completed order form) confirmation of an order for services from HGL.

4. The terms of the contract as stated in HGL’s order confirmation constitute the entire contract between the Client and HGL. Any variations to the contract terms are only valid if signed by a director of HGL. In the event of any conflict between these standard terms and conditions and HGL’s order confirmation, the order shall prevail.

5. In exchange for Advertising, the Client will make available Bartered Goods, or a combination of Bartered Goods and cash, to be disposed of as HGL sees fit. The Client agrees that it will fulfil its obligations directly to any such assignees as so requested by HGL. The Client represents and warrants that:

a. the Bartered Goods they have offered for barter can legally be sold by them and their assigned agents or dealers;

b. they have full power to enter into this Agreement;

c. to the best of their knowledge, their Bartered Goods do not infringe upon any statutory copyright or upon any common law rights, proprietary rights or any other rights whatsoever and their Bartered Goods are free and clear of all encumbrances;

d. to the best of their knowledge, all information they provide about the Bartered Goods is true and correct;

e. if specific dates apply to the Bartered Goods, the Client will use their best endeavours to make the Bartered Goods available on the dates specified; If the Bartered Goods cannot be made available on the specified dates, the Client will use their best endeavours to find suitable alternatives for users seeking to realise the Bartered Goods on the dates specified;

f. the Bartered Goods will be available over a set validity period but if no validity period is set, then it will be assumed that the Bartered Goods are available on a no-expiry-date basis;

g. users redeeming the Bartered Goods will be treated with the same facilities and service as if direct customers;

h. any additional terms, deviations or provisions in respect to the exchange of Bartered Goods will be set out on email communications at point of sale.

i. in the event that the Client is in default of its obligations to provide Bartered Goods within terms and conditions, the Client agrees to immediately pay HGL the equivalent value of the Bartered Goods or contract value, whichever is greater.

6. Each party agrees to adhere to the price of the Advertising and the Bartered Goods set out in HGL’s order confirmation. The Client represents to the best of their knowledge that the pricing for their Bartered Goods represents the fair market value within the applicable industry.

7. Payment terms for the cash element of any order are offered based on the credit score of any client as per our credit check supplier. All non-UK customers are required to pay in full in advance of publication. Subject to credit being granted, HGL’s standard terms are 50% of the total amount of the contract price agreed is due at the time of booking and the balance due within seven (7) days after publication. This first 50% shall constitute a non-refundable part payment of the contract price. The balance of the contract price shall be payable seven (7) days after publication of the advertisement (or first publication in the case of a series booking). If the agreement covers both print and digital formats, the balance is due seven (7) days from the occurrence of the earliest event.

8. Invoices are strictly net at the price agreed and exclusive of applicable VAT or other direct sales taxes and payable without deduction unless agency commission is agreed in writing as deductible at a specific rate.

9. In the event that HGL’s stated payment terms are not met, the entitlement of the Client to any discounts applied to the Client’s original booking(s) is forfeited, and the price for the advertisement insertions will default to that published on the current ratecard at the time of booking. In the event of late payment (i.e. payment outside of HGL’s agreed payment terms), HGL reserves the right to claim for payment in full from the Client as per the current published ratecard and reserves the right to charge statutory interest on that amount. Statutory interest is calculated at the rate of 8% per annum above the Bank Of England’s base rate, and is calculated daily. If HGL exercises its right to charge statutory interest, it is calculated from the day after due date until payment is received by HGL, and before as well as after judgement if applicable. HGL’s invoice for interest charges shall be final and binding upon the Client.

10. The Client is solely responsible for submitting to HGL Advertising Materials in electronic format in accordance with HGL’s specifications by the specified date. The Client warrants and represents that the Advertising (a) does not contravene the Trade Descriptions Act 1968 nor any other law, statute or regulations in England and/or in any other country where the Advertising might appear as a result of its publication by HGL (b) is not in any way defamatory or illegal or an infringement of the rights of any third party (c) complies in all respects with the British Code of Advertising Practice and any other relevant advertising standards prevailing (in England and/or in any other country where the Advertising might appear as a result of its publication by HGL) at the time the Advertising is published. The Client will also indemnify HGL, its suppliers and distributors against any damage they may sustain in consequence of publication of the Client’s Advertising, (such as copyright claims by a third party).

11. In the event that the Client is in default of its obligations under paragraph 10 (or gives notice that it does not intend to fulfil such obligations prior to the date for submission of advertising copy) the Client agrees to pay HGL as liquidated damages the lesser of:

a. 100% of HGL’s rate card price for the advertisement (or aggregate price in the case of a series of advertisements) prevailing at the date of this order or;

b. the contract price as agreed between HGL and the Client credit being given for any payments made by the Client in respect of this order prior to the default or notice.

12. HGL reserves the right to charge the single insertion rate for each advertisement published in the event of the Client failing to complete a series booking.

13. While HGL will take reasonable care of any Advertising Materials supplied by the Client whilst in HGL’s custody, HGL shall not be liable for loss or damage of material in transit or whilst with any third party.

14. All Advertising is accepted at HGL’s discretion as to suitability. If HGL exercises its rights under this paragraph at any time, HGL shall not be liable for costs, claims, liabilities or damages of any kind as a consequence of so doing.

a. HGL reserves the right to ensure all Advertising is compliant with all appropriate codes of advertising practice by making copy changes which in HGL’s reasonable opinion are necessary to ensure advertising messages are compliant both with the letter and spirit of the codes. HGL reserves the right to request source material from the Client to support any claim and also to remove claims which in its reasonable option are not supported by peer-reviewed research.

b. In addition, where Advertising is advertorial content, HGL reserves the right to make grammatical changes and minor corrections to conform to HGL’s house style.

15. Any design, production or marketing services agreed as part of the booking are bound by the terms and conditions of Hurst Media Labs Limited Marketing Terms & Conditions which are available by clicking here.

16. All reasonable efforts will be made by HGL to fulfil its obligations, but should HGL be prevented or delayed in carrying out any of their obligations by reason of an Act of God, war, lock-out, fire, flood, delays in transit, strikes, riots, postal delay or any other unexpected or exceptional causes or circumstances beyond their control the time for delivery shall be extended until a reasonable time after the event preventing or interfering with the due performance of HGL’s obligations has ceased, and in no circumstances is HGL to be liable for any consequential loss or damage suffered by the Client as a result thereof. For clarity, HGL will not be liable for any loss occasioned by the failure of an advertisement to appear from any cause whatsoever.

17. HGL reserves the right to vary date of appearance of Advertising (e.g. publication or broadcast date, advertising going live on the website, and/or any other appropriate measure of appearance) by not more than +/-21 days and will notify the Client if there is a change to the scheduled date as soon as is reasonably practicable. In any event, time shall not be of the essence as regards the appearance date.

18. In the event that the Client enters into liquidation (whether compulsory or voluntary); company administration; or is placed into receivership; or comes to any arrangement with its creditors, whether formal or informal; or becomes unable to pay its liabilities as and when they fall due; or is presented with a valid winding-up petition by the court; or is subject to a successful winding-up petition by the court, those in control of the Client at the time (i.e. directors/partners/owners for, respectively, a limited company/partnership/sole trader), warrant that all outstanding debts will be paid to HGL, and undertake to fulfil the payment liability personally, on a joint and several basis.

19. HGL does not accept liability for errors in appearance of the Advertising (e.g. printing errors, including variations in the quality of colour reproduction) and such variations shall not be deemed cause for the Client withholding payment.

20. All disputes or complaints must be made in writing to HGL as soon as the Client is aware and in any event within 28 days of publication.

21. In no event shall the liability of HGL for any breach of contract or in tort exceed the price paid or payable by the Client for the advertisement.

22. The Client may cancel a booking by agreeing to pay a severance fee. The level of this fee is a percentage of the booking value, and varies depending on how close the cancellation is to the Deadline.

a. If the Press Deadline is more than 30 days in the future the fee is 33% + VAT of the booking value.

b. If the Press Deadline is more than 7 days in the future but fewer than 30 days away the fee is 66% + VAT of the booking value.

c. If the Press Deadline is within 7 days the fee is 100% + VAT of the booking value.

d. A separate cancellation invoice on 7-day terms will be raised by the accounts department, and the original invoice credited in full once payment is received.

e. In the event the cancellation invoice is not paid within terms, it will be cancelled and the full amount of the original contract will stand.

f. For the avoidance of doubt, for any campaigns that are already live, the cancellation fee is 100% of the contract value.

g. Cancellations within 72 hours of the Deadline will not be accepted and HGL reserves the right at its absolute discretion to source content (e.g. artwork or copy) from the Client’s website and/or other materials at full charge if the Client fails to provide it and run with assumed approval from the Client order to fulfil the booking.

23. DATA PROTECTION

Additional Definitions

For the purposes of this clause 14, “data controller”, “data processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organisational measures” have the meanings ascribed to them in Data Protection Legislation.

Data Controller and Data Processor

a. Both parties will comply with their obligations under the Data Protection Legislation, in the case of the Client, as data controller and, in the case of HGL, as data processor. In particular, HGL undertakes to:

i) abide by, and procure that its employees, representatives, subcontractors and agents abide by, the Data Protection Legislation; and

ii) provide reasonable assistance to the Client in complying with their respective obligations under Data Protection Legislation in relation to the performance of any services provided by HGL to the Client.

b. Without limiting the foregoing, HGL shall:

i) act only in accordance with the Client’s (or the relevant Client Affiliate’s) written instructions with regard to the processing of Client Personal Data. If HGL is required to process Client Personal Data for any other purpose by applicable law, HGL shall inform the Client of this legal requirement, to the extent permitted to do so by the applicable law;

ii) maintain written records of data processing activities to include all categories of personal data processing activities carried out on behalf of the Client containing the information prescribed in relation to data processors, provided that the Client shall provide HGL with all relevant information about the personal data that it requires HGL to process data pursuant to services provided to its clients and to enable HGL to maintain such records;

iii) not transfer such Client Personal Data and information to a country or territory outside the European Economic Area (the “EEA”) without the Client’s (or the relevant Client Affiliate’s) express written consent;

iv) ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised or unlawful processing and against accidental, alteration, or disclosure of Client Personal Data

v) immediately notify the Client in the event that it receives a request or notice from a data subject exercising his/her rights under the Data Protection Legislation for the Client to resolve and to assist the Client promptly with all requests and notices which may be received from data subjects. This includes, upon the applicable Client entity’s written request and to the extent permitted by the Data Protection Legislation, where the applicable Client entity cannot itself access such data, promptly providing at no charge such entity with such copies of any Client Personal Data in the possession or control of HGL which are requested by that Client entity (in the format and medium reasonably required by that entity);

vi) shall promptly carry out any request from a Client requiring HGL to amend, transfer, lock or delete any Client Personal Data in the possession or control of HGL;

vii) on the expiry or termination of the services, immediately cease to use all Client Personal Data and shall arrange for its safe return or destruction as notified by the Client in writing at the relevant time;

viii) promptly notify the Client upon receiving any notice or communication from any data protection supervisory or government body, including the Office of the Information Commissioner, which relates directly or indirectly to the processing of the personal data, for Client to resolve; and

ix) if any Client Personal Data in the possession or control of HGL becomes lost, corrupted, destroyed, altered or rendered unusable for any reason, immediately (but, in any event, thirty six (36) hours of becoming aware) notify the Client of any and all circumstances having led to such incident, as the Client or any data protection supervisory or government body, including the Information Commissioner’s Office, may reasonably require to comply with its security breach obligations under the Data Protection Legislation.

Client Obligations

c. The Client acknowledges that it may from time to time require HGL to collect personal data for marketing purposes (“Marketing Data”).The Client shall only use the Marketing Data in accordance with any informed consent and/or marketing preferences provided by the applicable data subject.

d. The Client shall indemnify and hold harmless HGL against any costs (including legal costs), expenses, fines, penalties (including fines and penalties from a regulator) and losses arising from directly or indirectly from any breach of clause 14.

e. Without limiting the foregoing, the Client shall;

i) comply with Data Protection Legislation and ensure that any instructions it issues to HGL, including the transfer itself, shall comply with Data Protection Legislation; and

ii) have sole responsibility for the accuracy, quality, and legality of Personal Data, and the means by which the Client acquired Personal Data and shall establish the legal basis for Processing under Data Protection Legislation.

f) the Client warrants that;

i) the disclosure of Personal Data to HGL is limited to what is necessary in order for HGL to perform services it is contractually obligated to provide to the Client;

ii) such Personal Data is accurate and up-to-date at the time that it is provided to HGL;

iii) it shall provide advance written notice to HGL of its intention to transfer Personal Data to HGL for use in the provision of services.

g. the Client shall;

i) collect Personal Data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for HGL to lawfully and fairly process Personal Data in connection with/arising out of the provision of the provision of services;

ii) ensure compliance with appropriate technical and organisational;

iii) notify HGL upon becoming aware that Personal Data has become inaccurate or out of date.

24. This agreement shall be subject to the laws of England and Wales. The Client submits to the non-exclusive jurisdiction of the English Courts.

Hurst Media Labs Limited, The Frames, 1 Phipp Street, London EC2A 4PS
Registered Office: The Frames, 1 Phipp Street, London EC2A 4PS
UK Reg No: 14077121
VAT No: [161866882]