Hurst Media Agency Limited Terms and Conditions

Effective date: 30 June 2021

1. SERVICES AND ACCEPTANCE OF TERMS

Hurst Media Agency Limited (“HMA”) acts in good faith in an advisory capacity as a media consultancy. Full details of what is included in the services we agree to supply are set out in the media proposal submitted by HMA to our clients and attached to these terms and conditions (“the services”). This might involve recommending appropriate third parties to companies. HMA will not be liable for the acts or omissions of third parties. All HMA contracts are considered made at its offices at The Frames,1 Phipp Street,London EC2A 4PS. Acceptance of these terms and conditions may be effected by written confirmation (including by email or completed order form) from the Client to HMA. Acceptance of these terms and conditions by email correspondence between the Client and HMA will constitute a legally binding agreement between the Client and HMA.

2. OBLIGATIONS

HMA does not warrant or guarantee that the services will generate any particular level of campaign response or sales even where the media proposal may refer to the response levels that may be generated.

3. LIABILITY

HMA accepts a limitation of liability attributed to us due to any proven negligence on our part. This liability is limited to £500 for any one claim or series of claims. For the avoidance of doubt, HMA does not accept liability for consequential loss. HMA does not exclude a limit of liability in any way for death or personal injury caused by its negligence.

All reasonable efforts will be made by HMA to fulfil its obligations, but should HMA be prevented or delayed in carrying out any of their obligations by reason of an Act of God, war, global pandemic, 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 HMA’s obligations has ceased, and in no circumstances is HMA to be liable for any consequential loss or damage suffered by the Client as a result thereof. For clarity, HMA will not be liable for any loss occasioned by the failure of an advertisement to appear from any cause whatsoever.

4. DEFINITIONS

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

“Client Personal Data” means all information and data (including texts, documents, drawings, diagrams, images or sounds, and social media content including WhatsApp messages) owned by, licensed to (other than by the Supplier) 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, HMA pursuant to or in connection with the this agreement;

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

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

“HMA” means Hurst Media Agency Limited, company number 10946147, with a registered office at United House, North Road, London N7 9DP.

“Confidential Information” means the media plan provided by HMA, strategy provided by HMA, competitor information or market analysis provided by HMA, and price information supplied by HMA in relation to media rates.

5. PERSONAL DATA

5.1 The Client acknowledges that it may from time to time require HMA 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.
5.2The Client shall indemnify and hold harmless HMA 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 5.1.
5.3 Without limiting the foregoing, the Client shall comply with Data Protection Legislation and ensure that any instructions it issues to HMA, including the transfer itself, shall comply with Data Protection Legislation; and 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.
5.4 Client warrants that the disclosure of Personal Data to HMA is limited to what is necessary in order for HMA to perform the Services;and that
5.5 such Personal Data is accurate and up-to-date at the time that it is provided to HMA.
5.6 Client shall 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 HMA to lawfully and fairly process Personal Data in connection with/arising out of the provision of the Services and as otherwise contemplated by the remainder of the Agreement; and
5.7 shall ensure compliance with the security measures; and shall
5.8 notify HMA upon becoming aware that Personal Data has become inaccurate or out of date.

6. DELIVERY

All attempts will be made to deliver the services in full on or before the completion date agreed by both parties but time shall not be of the essence. HMA cannot be held accountable for technical difficulties out of our control nor can we assist with technical problems beyond the range of services we offer. In the event of any complications all reasonable endeavours will be made to ensure that the contract is delivered in full and on time.

7. CANCELLATION AND AMENDMENTS

Amendments and cancellations must be made in writing. A requested amendment may result in an increase in the cost and time required to complete the project and therefore an increase in price. Any price increases will be notified to you. Cancellations of contracted work may result in a charge to you for costs incurred by HMA in the delivery of the services, whether or not those costs have already been paid.

Any cancellation of services within forty-five (45) calendar days of commencement or media booking(s) will be charged at 100% of the price. Cancellation prior to forty-five (45) calendar days before the commencement date will be charged at 33% of the agreed fee, unless HMA has incurred additional costs over 33% of the contract value, in which case a partial refund will be made once the costs are deducted.

7.1 Under exceptional circumstances, HMA reserves the right to cancel any commitment with you, without any obligation on its part, should:

7.2 There be any occurrence beyond the reasonable control of HMA, which will prevent us from performing our duties.

7.3 If HMA reasonably believes there is a prospect of reputational or financial damage to its business and/or that of its associated companies and suppliers.

7.4 If the client or third party has an unsettled account or dispute with HMA.

7.5 If HMA becomes aware of changes in the client’s financial situation.

7.6 If the client fails to comply with these terms and conditions.

8. COPYRIGHT

Material produced by HMA is the result of creative skill and significant labour and the copyright of the work rests with HMA in perpetuity. At all times, HMA retains the moral rights to be identified as the creator of any promotional content. Permission must be sought before any material can be copied; adapted; issued; distorted; rented; lent; presented to the public or broadcast. Infringement of copyright is a criminal offence.

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

9. PAYMENT

9.1 Invoices are sent upon confirmation of media bookings. Payment must be made by BACS transfer within seven (7) days of booking unless a credit account has been agreed in advance.

9.2 Invoices are strictly net at the price agreed and exclusive of applicable VAT or other direct sales taxes and payable without deduction.

9.3 In the event that HMA’s stated payment terms are not met, the entitlement of the Client to any discounts applied to the Client’s original booking(s) is forfeit, 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 HMA’s agreed payment terms), HMA reserves the right to claim for payment in full from the Advertiser 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 HMA exercises its right to charge statutory interest, it is calculated from the day after due date until payment is received by HMA, and before as well as after judgement if applicable. HMA’s invoice for interest charges shall be final and binding upon the Client. All debt recovery, administration, interest payments and court costs incurred will be added to the sum owed by the Client.

9.4 HMA, although it will act as an intermediary, cannot be held financially accountable for the acts or omissions of its clients or third parties.

9.5 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 HMA, and undertake to fulfil the payment liability personally, on a joint and several basis.

10. CONFIDENTIAL INFORMATION

The Client and HMA agree to a binding non-disclosure agreement regarding the Confidential Information. The Confidential Information disclosed by HMA to the Client does not give the Client or any other person or entity any licence or other right in respect of any Confidential Information. The Client acknowledges that any breach of confidentiality set out under this clause has the potential to damage HMA yet that damages are not an adequate compensation for any breach. Accordingly, HMA shall be entitled to seek the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of this clause and reserves all rights.

11. EXCLUSIVITY

In the event that an exclusive arrangement is agreed between the Client and HMA for HMA to act as the Client’s sole media buyer across any or all channels as per the terms agreed in an exchange of communication, this will be for a 12-month contractual period. This contract will renew automatically on the anniversary of the commencement of the contract for a further twelve (12) months. The Client may give three months’ notice under the contract at any time, which will commence at the end of the 12-month commitment. All monies owed must be settled on termination.

12. ENGLISH LAW

These terms and conditions and any dispute arising out of or in connection with them or their subject matter shall be governed by and construed in accordance with the law of England and Wales and you submit to the exclusive jurisdiction of the courts of England and Wales.

13. DATA PROTECTION

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
(i) Both parties will comply with their obligations under the Data Protection
Legislation, in the case of Client, as data controller and, in the case of HMA, as data processor. In particular, HMA undertakes to:
a) abide by, and procure that its employees, representatives, subcontractors and agents abide by, the Data Protection Legislation; and
b) provide reasonable assistance to Client in complying with their respective obligations under Data Protection Legislation in relation to the performance of any services provided by HMA to the Client.
(ii) Without limiting the foregoing, HMA shall:
a) act only in accordance with Client’s (or the relevant Client Affiliate’s) written instructions with regard to the processing of Client Personal Data. If HMA is required to process Client Personal Data for any other purpose by applicable law, HMA shall inform Client of this legal requirement, to the extent permitted to do so by the applicable law;
b) 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 GDPR, provided that this obligation shall only apply with effect from the date that the GDPR is entered into force (and provided that Client shall provide HMA with all relevant information about the personal data that it requires HMA to process data pursuant to services provided to its clients and to enable HMA to maintain such records;
c) not transfer such Client Personal Data and information to a country or territory outside the European Economic Area (the “EEA”) without Client’s (or the relevant Client Affiliate’s) express written consent;
d) 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
e) immediately notify 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 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 HMA which are requested by that Client entity (in the format and medium reasonably required by that entity);
f) shall promptly carry out any request from a Client requiring HMA to amend, transfer, lock or delete any of Client Personal Data in the possession or control of HMA;
g) on the expiry or termination of the services, immediately cease to use Client Personal Data and shall arrange for its safe return or destruction as notified by Client in writing at the relevant time;
h) promptly notify 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
i)if any Client Personal Data in the possession or control of HMA becomes lost, corrupted, destroyed, altered or rendered unusable for any reason, immediately (but, in any event, thirty six (36) hours of becoming aware) notify Client of any and all circumstances having led to such incident, as 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.