HURST MEDIA AGENCY

MEDIA BUYING TERMS AND CONDITIONS – EFFECTIVE DATE: 12TH APRIL 2023

Effective Date: 12th April 2023

Hurst Media Agency Limited – Standard Terms and Conditions

Definitions

“Client” means a person, company, partnership or legal entity that enters into a contract with HMA 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 HMA) 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 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;

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

“HMA” means Hurst Media Agency Limited details contained below.

“Media Owner Deadline” means the date HMA provides files to the media owner for publication.

“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 publication. Subject to credit being granted, HMA’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.

2) The specification and distribution details are as per 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 HMA.

4b) 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 to the Client will constitute a legally binding agreement between the Client and HMA.

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). 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 HMA.

5) The Client is solely responsible to submit to HMA suitable advertisement/advertorial copy in electronic format (in accordance with HMA’s specifications) by the specified date. The Client warrants and represents that the advertisement (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 as a result of its publication by HMA (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 as a result of its publication by HMA) at the time the advertisement is published. The Client will also indemnify HMA, its suppliers and distributors against any damage they may sustain in consequence of publication of an advertisement, (such as copyright claims by a third party).

6) All advertisements/advertorials are accepted at HMA’s discretion as to suitability. If HMA exercises its rights under this paragraph at any time, HMA shall not be liable for costs, claims, liabilities or damages of any kind as a consequence of so doing.

7) 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.

8) HMA reserves the right to make grammatical changes and minor corrections to conform to the Media Owner’s house style. In addition, HMA 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 HMA’s reasonable opinion are necessary to ensure advertising messages are compliant both with the letter and spirit of the code. HMA 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 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 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 HMA’s agreed payment terms), HMA 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 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.

10) 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, 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.

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

12) Every effort will be made to meet the expressed wish of a Client regarding specified positions, but no guarantee can be given unless a supplementary positioning charge has been agreed.

13) 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.

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 of advertising copy) the Client agrees to pay HMA as liquidated damages the lesser of:

a) 100% of HMA’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 HMA 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 HMA, 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 HMA’s order confirmation, the order shall prevail.

17) HMA reserves the right to vary date of publication or advertising going live on the website 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 publication date.

18) HMA 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.

19) HMA 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.

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

21) In no event shall the liability of HMA 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 Media Owner Deadline.

(i) If the Media Owner Deadline is more than 30 days in the future the fee is 33% + VAT of the booking value.

(ii) If the Media Owner Deadline is more than 7 days in the future but fewer than 30 days away the fee is 66% + VAT of the booking value.

(iii) If the Media Owner Deadline is within 7 days the fee is 100% + VAT of the booking value.

(iv) 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.

(v) 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.

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

(vii) Cancellations within 72 hours of the Media Owner Deadline will not be accepted and HMA 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

(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 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 the 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 the 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 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 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 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 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 Client Personal Data in the possession or control of HMA;
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 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 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 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.
(iv) The 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 14.
(v) Without limiting the foregoing, the Client shall;
a) 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
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 HMA is limited to what is necessary in order for HMA 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 HMA;
c) it shall provide advance written notice to HMA of its intention to transfer Personal Data to HMA 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 HMA 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 HMA 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 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.

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 Agency Limited, The Frames,1 Phipp Street,London EC2A 4PS
Registered Office: The Frames,1 Phipp Street,London EC2A 4PS
UK Reg No: 10946147
VAT No: 161866882