Terms and Conditions for Media Buying
Terms and Conditions for Media Buying - These Terms apply to the media buying and planning, data, creative, search engine optimisation and other advertising and marketing related services to be provided by PUSHED LIMITED, a company with its address at 43 Merafield Road, Plympton, Plymouth, Devon, PL7 1TL, company number 5320516 (“Pushed”) to the Client, as detailed in the insertion order or other document (the “Booking Form”) to which these Terms relate. These Terms and the Booking Form(s) together constitute the “Agreement” between the parties.
1. Services To Be Provided
1.1 The Client
appoints Pushed to provide the Services described in the Booking Form (the
“Services”). The Services shall be performed subject to and in accordance with
the provisions of these Terms.
1.2 Pushed agrees to act as a principal and not as an agent in respect of all of their dealings with the media and other suppliers in respect of the Client's advertising, save where the parties agree that the Client will contract directly with such suppliers.
2. Pushed Remuneration And Media Charges
consideration of the performance of the Services, Client shall pay Pushed the
fees detailed in the Booking Form (the “Fees”). Unless otherwise stated the
fees are payable in GBP.
2.2 The Client will pay Pushed for all charges levied by:
(a) media owners for the placement of advertising as approved in advance by the Client, in accordance with any media plan provided by Pushed;
(b) advertising exchanges, trading platforms or other third party intermediaries (“Digital Intermediaries”) involved in the placement or delivery of Client’s digital advertisements pursuant to a Booking Form.
2.3 The remuneration includes all travel, subsistence and despatch costs within the Plymouth area which are incurred by Pushed in the course of providing the Services. All other travel, despatch, subsistence and other extraordinary costs, properly and reasonably incurred in providing the Services, will be chargeable to the Client at net cost to Pushed, provided each such expenditure has been approved in advance by the Client or pursuant to a budget approved in advance by the Client.
3.1 The Agreement
shall apply from the date specified in the Booking Form and, subject to earlier
termination in accordance with this Agreement, continue in full force and
effect for the term specified in the Booking Form (the “Initial Term”), and
thereafter unless and until terminated by either party giving the other not
less than 30 days written notice, such notice not to expire before the expiry
of the Initial Term.
3.2 Where no term is specified in the Booking Form, either party may terminate the Agreement by giving not less than 30 days written notice to the other party.
3.3 Upon termination of the Agreement, the Client shall promptly reimburse Pushed for any costs properly incurred by Pushed in the course of performing the Services and to which it is committed at the time of termination.
3.4 Either party may terminate this Agreement immediately upon written notice to the other party:
(a) in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
(b) if the other party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
3.5 Notwithstanding any other provision of the Agreement, Pushed may immediately suspend or terminate the Services if any of its suppliers (including without limitation media or Online Intermediaries) suspend or terminate the services being supplied to Pushed, provided always that Pushed will only suspend or terminate that part of the Services affected by the actions (or inaction) of any third party supplier.
4. Approvals & Authority
4.1 After obtaining
the Client’s general approval of campaigns, Pushed will submit to the Client
for specific approval estimates or quotations of the costs of the various items
of advertising or digital services (whether in an insertion order or
4.2 The Client's written approval (which shall include email) of such estimates and quotations will be Pushed's authority to make reservations and contracts for space, time and other facilities.
5.1 The Client may
request in writing that Pushed changes, rejects, cancels or stops all plans,
schedules, insertion orders or work-in-progress and Pushed shall take
reasonable steps to comply, provided that Pushed can do so within Pushed's
contractual obligations to suppliers.
5.2 In the event of any cancellations or amendment as aforesaid, the Client agrees to reimburse Pushed for any charges or expenses which Pushed has incurred or to which Pushed is contractually committed.
6. Payment Terms
6.1 The payment
terms are based upon the principle that the Client will ensure that Pushed is
paid in time to meet the liabilities which arise from orders placed by Pushed
with media owners and Digital Intermediaries in respect of the Client's
6.2 All pro forma invoices in accordance with a Booking Form approved by the Client, will be presented to the Client allowing sufficient time for the Client to make full payment to Pushed, with Pushed receiving cleared funds no later than 17 working days prior to the transmission date, unless specified otherwise.
6.3 Some media contractors and Digital Intermediaries require payment of their accounts to be in their hands by specified dates, otherwise a surcharge is incurred. The Client agrees to pay Pushed this surcharge if the Client fails to pay by the due dates.
6.4 All invoices presented to the Client by the due date and not subject to dispute which are not paid by the due date shall be subject to an interest charge at the statutory rate specified in the Late Payment of Commercial Debts (Interest) Act 1998.
6.5 The Client will promptly provide Pushed with purchase order numbers in respect of all approved media and Digital Intermediary charges and the Client will use such purchase order numbers on all relevant invoices. The absence of a purchase order number on an invoice will not constitute a valid reason for withholding payment.
6.6 Pushed is insured against credit risks and all clients of Pushed must be acceptable to Pushed's insurers. In the event therefore of the insurers revising or withdrawing cover for the Client, Pushed shall revise its terms of payment and if necessary ask for payment in advance. Should the aforementioned occur and a suitable agreement cannot be reached between the Client and Pushed within 14 days of such request, Pushed shall be entitled forthwith to terminate the Agreement by written notice to the Client.
7. Legal Liability And Other Claims
7.1 Nothing in the
Agreement shall exclude liability for fraud or death or personal injury caused
by negligence or any other type of liability to the extent it may not be
excluded by law. Subject to this:
(a) Pushed's maximum aggregate liability to the Client for losses or damages suffered for any single event or series of related events and whether in contract, tort (including negligence) or otherwise will in no circumstances exceed the greater of: (i) £25,000; and (ii) the Fees payable by Client under the Letter giving rise to the liability; and
(b) Pushed will not be liable under the Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
7.2 Pushed shall not be liable for any delay in or omission of publication, transmission or delivery or any error in any advertisement or its placement in the absence of default and neglect on Pushed's part.
7.3 Pushed shall not be in any way responsible for the preparation, content, production, supplying or copy of advertisements supplied or to be supplied by the Client or its agents, subcontractors or other representatives.
7.4 If due to war, strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, import or export embargo, ice obstruction, natural catastrophes or other act, event, non-happening, omission or accident over which Pushed has no control, Pushed fails to complete their assignment or deliver the Services in the manner and within the time required by the terms of the Agreement Pushed will not be responsible for any loss or damage which may be incurred by the Client as a result of such failure.
8. Clients And Warranties
8.1 Client will
give Pushed clear briefings and will make available to Pushed all relevant
information required for its performance of the Services. Client shall provide
any data, documents or other materials to be supplied by the Client to Pushed
under the Agreement (“Client Materials”) promptly so that Pushed is able to
comply with its obligations under the Agreement.
8.2 The Client hereby warrants and undertakes that:
(a) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b) it shall in connection with this Agreement, and the Client Materials shall, comply with all applicable laws and any applicable codes of practice, and it shall take appropriate steps to verify such compliance;
(c) Client Materials will not infringe any third party intellectual property right anywhere in the world;
(d) Client Materials will not be obscene or discriminatory and will not defame or breach the privacy rights of any third party;
(e) Client Materials (including, without limitation, instructions in any insertion order or similar document) are accurate in all material respects;
(f) Client Materials will not contain any executable code, virus or malicious code;
(g) it shall comply with any third party policies applicable to the Services that Pushed notifies to Client from time to time;
(h) it shall not set, place, read, write, access, delete or otherwise use any cookies or similar technology in connection with the Services;
8.3 The Client hereby indemnifies and keeps Pushed indemnified against all losses, claims, liabilities, damages, costs and expenses suffered by Pushed as a result of any breach of the above warranties and undertakings.
8.4 The Client agrees to inform Pushed without delay if it considers that any claim or trade description in any Client Materials placed by Pushed on behalf of the Client is false or misleading in any way.
9. Warranties Of Pushed
9.1 Pushed warrants that: (i) the individual signing this Agreement (and each Booking Form) on behalf of Pushed has (and shall have) the full authority to legally bind Pushed; and (ii) it will perform the Services in a workmanlike manner and with reasonable skill and care.
10. Terms of Business With Media and Digital Intermediaries
10.1 Unless otherwise stated, Pushed's contracts with media, Digital Intermediaries and suppliers for the Client’s advertising are made in accordance with media rate cards and/or other standard or individual conditions and contracts. The rights and liabilities between the Client and Pushed shall correspond to those between Pushed and the various media, Digital Intermediaries and suppliers under such conditions, and the Client hereby indemnifies and keeps indemnified Pushed against all losses, claims, liabilities, damages, costs and expenses suffered as a result of any breach by the Client of any third party terms and conditions which Pushed has entered into on the Client’s behalf.
11. Confidential Information
11.1 It is recognised that during the course of business certain confidential information concerning marketing, sales, new products, media buying rates, media plans, and the like, will be communicated to Pushed by the Client and visa versa. Each party undertakes to maintain the confidentiality of the other party’s confidential information and only use such confidential information in the performance of its obligations under this agreement. Both parties shall instruct all employees that they have an obligation to ensure confidentiality of such information at all times. It is agreed that this obligation of confidentiality shall continue after termination.
12. Intellectual Property
(a) “Background Materials” means Creative Material in existence prior to the date on which it is intended to use them in connection with the Services and in relation to which the Intellectual Property Rights are owned by Pushed;
(b) “Creative Material(s)” means the advertising copy and other creative materials described in a Booking Form that are to be provided by Pushed under this Agreement, but excluding any Client Materials;
(c) “Intellectual Property Rights” means all copyright, patents, database rights, trademarks, design rights and any other proprietary right, now known or hereinafter created, together with all extensions and renewals of such rights;
(d) “Third Party Materials” means Creative Materials in which the Intellectual Property Rights are owned by a third party and which the applicable third party owner.
12.2 Client hereby grants Pushed a non-exclusive, non-transferable royalty-free licence during the term of the Agreement to use the Client Materials in connection with the Agreement.
12.3 Client acknowledges and agrees that all Intellectual Property Rights in the Creative Materials shall immediately upon creation shall be and remain the exclusive property of Pushed.
12.4 Subject to the remaining provisions of this Clause 12, upon payment of all Fees due for the Creative Material intended to be assigned, Pushed hereby assigns the Intellectual Property Rights in that Creative Material to Client. At Client’s cost and expense, Pushed agrees to execute and deliver, promptly upon request, any documents, or do all such further acts, which Client may reasonably request to evidence, obtain or perfect or protect the assignment of rights to Client set out in this Clause 12.
12.5 Client acknowledges that all Intellectual Property Rights in the Background Materials shall be owned by and remain the property of and vested in Pushed. Subject to Pushed receiving payment of all Fees attributable to the Background Materials licensed under this clause, Pushed hereby grants to Client a world-wide, perpetual, non-exclusive, royalty-free licence to use the Background Materials in connection with the Creative Materials.
12.6 If and to the extent that any of the Creative Materials comprise or include any Third Party Materials, Pushed shall procure a licence for Client to use such work on such terms as may be agreed between Pushed and the relevant third party.
13. Data Protection
13.1 Where Pushed
processes personal data (as defined in the Data Protection Act 1998 (“DPA”)) on
behalf of Client, then Pushed shall:
(a) process such data solely in Accordance with Client's instructions from time to time (consistent with its duties under the DPA);
(b) adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
14. Campaign Reporting
14.1 Where the
Services include Pushed's reporting platform (as described in the Booking
Form), at Client’s request Pushed will issue Client with a single login to
allow Client to track its campaign and for Client to access certain other
information and documents.
14.2 The login credentials are personal to Client and Client may not share them with any third party. Pushed shall be entitled to treat all access using Client’s login credentials as access by Client. If Client believes that its login credentials have been compromised Client must inform Pushed immediately and Pushed will take steps to issue fresh credentials.
14.3 Pushed may make available certain reports for download from and/or viewing in the reporting platform, and Pushed may also from time to time prepare other reports for Client, for billing or other purposes as agreed. Without prejudice to the confidentiality of Pushed's pricing under this Agreement, Client may use any aggregated performance data that is contained in these.
15. Entire Agreement
15.1 The Agreement
contains all the terms agreed between the parties regarding its subject matter
and supersedes any prior agreement, understanding or arrangement between the
parties, whether oral or in writing. Each of the parties acknowledges and
(a) in entering into the Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement; and
(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in the Agreement shall be for breach of contract as provided in the Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
15.2 The Agreement states the full extent of Pushed's obligations and liabilities in respect of the performance of the Services and the parties agree that any condition, warranty, representation or other term concerning the performance of the Service which might otherwise be implied into or incorporated in the Agreement, whether by statue, common law or otherwise, is excluded to the maximum extent permitted by law.
16.1 Client shall not be entitled to assign, sub-license or otherwise transfer the benefit or burden of the Agreement to any person without the prior written agreement of Pushed.
16.2 In the event of any conflict between the provisions set out in the Booking Form and the Terms, the Booking Form shall take precedence in relation to that matter.
16.3 If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of the Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.4 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
16.5 All notices, which are required to be given hereunder, shall be in writing and shall be sent to the address of the recipient set out in the Booking Form. Any such notice may be delivered by hand or by first class post and shall be deemed to have been served by hand when delivered if by first class post, 48 hours after posting when delivery confirmation is received.