Hurst Media Labs Design and Marketing Terms and Conditions

Effective Date: 12 April 2023

Hurst Media Labs Limited – Standard Terms and Conditions

Definitions

“Client” means a person, company, partnership or legal entity that enters into a contract with HML 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 HML) 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, HML pursuant to or in connection with this agreement;

“Content Deadline” means the date by which the Client must provide logos, artwork and/or other content, as communicated to the Client.

“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;

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

“HML” means Hurst Media Labs Limited details contained below.

“Client” means any person firm or company who enters into an agreement with HML.

“Approval Deadline” means the date L by which the Client must approve content supplied to it by HML, as communicated to the Client.

“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) Payment terms are offered based on the credit score of any client as per our credit check supplier (CreditSafe). All non-UK customers are required to pay in full in advance of receiving proofs. Subject to credit being granted, HML’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 receiving proofs. 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 receiving proofs. If the agreement covers both print and digital formats, the balance is due seven (7) days from the occurrence of the earliest event.

2) The specification and distribution details are as set out in the materials provided at the point of sale.

3) 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.

4a) The contract shall be deemed to have been made at the offices of HML.

4b) Acceptance of these terms and conditions may be effected by written confirmation (including by email or completed order form) from the Client to HML. Acceptance of these terms and conditions by email to the Client will constitute a legally binding agreement between the Client and HML.

4c) 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). Unless the Client provides 72 hours’ written notice, 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 HML.

5) Unless HML has agreed to provide a CAP code checking service, the Client is solely responsible to submit to HML requested content in electronic format (in accordance with HML’s specifications) by the relevant Content Deadline. The Client warrants and represents that any designs, copy, other content or advertisement that it has provided or approved (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 advertisement might appear (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 advertisement might appear ) at the time the advertisement is published. The Client will also indemnify HML, its suppliers and distributors against any damage they may sustain in consequence of publication of an advertisement, ( including but not limited to, any claims for designs/copies created which are deemed non-compliant by the Advertising Standards Authority and any copyright claims by a third party).

6). It is the Client’s responsibility to ensure that:

(a) the terms of the Client’s order are complete and accurate;

(b) the Client cooperates with HML in all matters relating to the services to be provided under this contract;

(c) the Client provides HML with such information and materials as HML may reasonably require in order to supply the services, and ensure that such information is complete and accurate in all material respects;

7) If HML’s ability to perform the services is prevented or delayed by any failure by the Client to fulfil any obligation listed in Clause 6 (Default):

(a) HML will be entitled to suspend performance of the services until the Client remedies the Default, and to rely on the Default to relieve HML from the performance of the services, in each case to the extent the Default prevents or delays performance of the services;

(b) HML will not be responsible for any costs or losses the Client sustains or incurs arising directly or indirectly from HML’s failure or delay to perform the services; and

(c) it will be the Client’s responsibility to reimburse HML on written demand for any costs or losses HML sustains or incurs arising directly or indirectly from the Default.

8) HML will share output files with the Client, working files will only be shared with the Client if explicitly agreed between the parties. In addition, HML reserves the right to ensure all commercial content is compliant with all applicable laws, statutes, regulations and codes from time to time in force (including without limitation, the Advertising Standards Authority’s UK Code of non-broadcast advertisements, sales promotions and direct marketing communications (CAP), BCAP codes (the UK Code of Broadcast Advertising), Clearcast and Radio Center for TV and Radio) by making copy changes which in HML’s reasonable opinion are necessary to ensure advertising messages are compliant both with the letter and spirit of the code. HML 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.

9) In the event that HML’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. In the event of late payment (i.e. payment outside of HML’s agreed payment terms), HML reserves the right to claim for payment in full from the Client as per its full current rates 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 HML exercises its right to charge statutory interest, it is calculated from the day after due date until payment is received by HML, and before as well as after judgement if applicable.
HML’s invoice for interest charges shall be final and binding upon the Client.

10) All reasonable efforts will be made by HML to fulfil its obligations, but should HML 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 HML’s obligations has ceased, and in no circumstances is HML to be liable for any consequential loss or damage suffered by the Client as a result thereof. For clarity, HML will not be liable for any loss occasioned by the failure of an advertisement to appear from any cause whatsoever.

11) The terms of the contract as stated in HML’s order confirmation constitute the entire contract between the Client and HML. Any variations to the contract terms are only valid if signed by a director of HML.

12) HML will use all reasonable endeavours to meet any performance dates agreed in the order confirmation, but any such dates are estimates only and failure to perform the services by such dates will not give the Client the right to terminate the contract. If HML’s performance of its obligations is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees (including without limitation the failure to meet a Content Deadline or Approval Deadline), then, without prejudice to any other right or remedy it may have, HML shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.

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

14) In the event that the Client is in default of its obligations under paragraph 5 (or gives notice that it does not intend to fulfil such obligations prior to the date for submission or approval of content) the Client agrees to pay HML as liquidated damages the lesser of:
a) 100% of HML’s highest standard rates for the services prevailing at the date of this order or;
b) the contract price as agreed between HML and the Client credit being given for any payments made by the Client in respect of this order prior to the default or notice.

15) 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 HML, and undertake to fulfil the payment liability personally, on a joint and several basis.

16) In the event of any conflict between these standard terms and conditions and HML’s order confirmation, the order shall prevail.

17a) Without affecting any other right or remedy available to it, HML may terminate the contract with immediate effect by giving written notice to the Client if:

(i) the Client fails to pay any amount due under the contract on the due date for payment; or

(ii) the Client becomes subject to any of the events listed in Clause 15.

(b) On termination of the contract:

(i) the Client shall immediately pay to HML all of HML’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, HML shall submit an invoice, which shall be payable by the Client immediately on receipt;

(ii) the Client shall return all of HML’s materials and any deliverables which have not been fully paid for.

(c) Termination of the contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination.

(d) Any provision of the contract that expressly or by implication is intended to come into or continue in force on or after termination of the contract shall remain in full force and effect.18) HML does not accept liability for printing errors, including variations in the quality of colour reproduction, and such variations shall not be deemed cause for the Client withholding payment.

19a) All intellectual property rights in or arising out of or in connection with the services (other than intellectual property rights in any materials provided by the Client) will be owned by HML.

(b) HML agrees to grant the Client a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the contract to copy the deliverables specified in the Client’s order (excluding materials provided by the Client) for the purpose of receiving and using the services and such deliverables in the Client’s business. The Client may not sub-license, assign or otherwise transfer the rights granted in this clause 19.

(c) The Client agrees to grant HML a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to HML for the term of the contract for the purpose of providing the services to the Client.

(d) The Client shall indemnify HML in full against any sums awarded by a court against HML arising of or in connection with any claim brought against HML for infringement of a third party’s rights (including any intellectual property rights) arising out of, or in connection with, the receipt or use of any Client materials by the Supplier

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

21) In no event shall the liability of HML for any breach of contract or in tort exceed the price paid by the Client for the services.

22a) The Client may cancel a booking by agreeing to pay a severance fee. For the avoidance of doubt the first 50% of the contract price shall in no circumstances be refundable and the parties agree that in any event it is fair and reasonable for this 50% to be forfeited to reflect HML’s opportunity cost for allocating significant resource to this contract. In addition, the Client shall pay a severance fee to reflect any third party liabilities incurred by HML in relation to this contract plus any time costs incurred by HML over and above 50% of the contract price (up to a maximum of 100% of the contract price).

(b) 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.

(c) 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.
(d) For the avoidance of doubt, for any digital campaigns that are already live, the cancellation fee is 100% of the contract value.

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

(i) 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 HML, as data processor. In particular, HML 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 the Client in complying with their respective obligations under Data Protection Legislation in relation to the performance of any services provided by HML to the Client.

(ii) Without limiting the foregoing, HML shall:

a) 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 HML is required to process Client Personal Data for any other purpose by applicable law, HML shall inform the 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, provided that the Client shall provide HML with all relevant information about the personal data that it requires HML to process data pursuant to services provided to its clients and to enable HML 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 the 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 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 HML 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 HML to amend, transfer, lock or delete any Client Personal Data in the possession or control of HML;

g) 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;

h) 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

i)if any Client Personal Data in the possession or control of HML 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

(iii) The Client acknowledges that it may from time to time require HML 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.

(iv) The Client shall indemnify and hold harmless HML 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.

(v) Without limiting the foregoing, the Client shall;

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

b) 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.

(vi) the Client warrants that;>

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

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

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

(vii) the Client shall;

a) 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 HML to lawfully and fairly process Personal Data in connection with/arising out of the provision of the provision of services; and

b) ensure compliance with appropriate technical and organisational;

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

24) In the event that an exclusive arrangement is agreed between the Client and HML for HML 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.

25) 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]