BACKGROUND:
The True Marketer, a digital marketing agency in the UK, with its office in Cheltenham (the “Service Provider”) provides digital marketing services to Clients.
These Terms and Conditions shall apply to the provision of Services by the Service Provider to its Clients.
Information and personal data To use our Services, the Service Provider may ask the Client to provide details or information. It is a condition of use that all the information the Client provides is accurate, true, and current. It is acknowledged and agreed that any information given is regulated by the Service Provider’s Privacy Policy. The Client also agrees to all actions the Service Provider takes concerning Client information according to that Privacy Policy.
1. Definitions and Interpretation 1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
- “Applicable Laws” means all applicable laws, statutes, regulations, and codes from time to time in force;
- “Agreement” means the agreement entered into by the Service Provider and the Client incorporating these Terms and Conditions;
- “Business Day” means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the UK;
- “Client” means the commercial party procuring the Services from the Service Provider who shall be identified in the Agreement;
- “Commencement Date” means the date on which the provision of the Services will commence, as defined in the Agreement;
- “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
- “Data Protection Legislation” means the UK Data Protection Legislation and any other relevant legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
- “Fees” means any and all sums due under the Agreement from the Client to the Service Provider, as specified in the Agreement;
- “Services” means the services to be provided by the Service Provider to the Client in accordance with Clause 2 hereof, as fully defined in the Agreement, and subject to these Terms and Conditions;
- “Term” means the term of the Agreement as defined therein;
- “Terms and Conditions” means these terms and conditions;
- “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK, including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to: 1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means; 1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time; 1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time; 1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and 1.2.5 a “Party” or the “Parties” refer to the parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions. 1.4 Words imparting the singular number shall include the plural and vice versa. 1.5 References to any gender shall include the other gender. 1.6 References to persons shall include corporations.
2. Provision of the Services 2.1 With effect from the Commencement Date, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client as detailed in Exhibit A of this Agreement or as otherwise provided via email. 2.2 The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the marketing services sector in the United Kingdom. The Service Provider shall not be responsible for any delays outside its control. 2.3 All Clients will be assigned a dedicated Account Manager who will handle Client accounts and manage Client day-to-day communication. 2.4 The Service Provider shall act in accordance with all reasonable instructions given to it by the Client, provided such instructions are compatible with the Specification. Any delays caused by access restriction shall be the responsibility of the Client. 2.5 The Service Provider may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time. 2.6 The Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes. Furthermore, the Client can incur further costs if it changes its strategy after the Service Provider’s resource is scheduled. 2.7 The Client has fourteen (14) days to provide feedback on work delivered by or on behalf of the Service Provider before the specific project is deemed approved and completed; the Client will incur additional charges for any further amendments made thereafter. 2.8 Furthermore, any feedback given at each round will not be provided to the Service Provider in a sporadic manner. Each specific project shall have a maximum of 5 rounds. Additional rounds of changes will be charged to the Client separately. 2.10 All turnaround times are based on the availability of the Service Provider’s resource and it is advised that the Client gives the Service Provider between 7-10 days notice to get work booked in. 2.11 If the project goes over the estimated hours by more than 10%, the Service Provider reserves the right to charge an hourly rate for the additional hours or, if the Client prefers, the Service Provider may terminate the project. 2.12 It is acknowledged and agreed that there will be a maximum of two (2) hours of project management time included within the agreed costs unless stated otherwise herein. Any additional project management time will be charged at our hourly rate. 2.13 The Client understands and agrees that the Service Provider may, without restriction, use works done for the Client for any marketing purposes. 2.14 Due to the nature of our business and projects, the Client should allow some flexibility when it comes to agreed targets or deadlines. Although we will use our best efforts, we will not be liable for any deadlines or targets missed or not met. 2.15 Marketing clients’ agreed package includes up to two (2) half-hour Client success meetings each month unless otherwise agreed in writing. These meetings must be booked in advance and set on a recurring basis. Any additional performance review meetings will be charged additionally at our standard hourly rate unless agreed otherwise in writing. 2.16 Client success meetings will be cancelled and the right to hold or attend that meeting will be lost, and the Client will have to wait until the next scheduled meeting if; a. Client does not show up to the meeting. b. Client is more than 10 minutes late. c. Client cancels the meeting with less than 24hrs notice. Furthermore, because of the time and resources it takes for us to arrange and attend success meetings, if the Client repeatedly does any of the above, they will lose their right to have such video meetings totally and will only receive emailed and/or video updates. 2.17 The Service Provider is committed to taking appropriate measures to create and maintain a workplace that is respectful and free from inappropriate disrespectful behaviour. It is, therefore, acknowledged and agreed that the Client must treat all employees, staff, representatives, agents, individuals, and team members with respect and use appropriate behaviour at all times. It is also agreed that: a. Disrespectful behaviour is improper behaviour that is unwelcome and inappropriate in the workplace. It may happen once or continue over time. It can include rude comments and swearing as well as spreading unfounded or misinformed rumours that damage people’s reputations; actions or unwelcome gestures that invade privacy or personal property; displays or distributions of printed or electronic material that offend. b. The Service Provider may terminate this agreement if they find that the Client or any of their employees, representatives, or agents have used such Disrespectful Behaviour as described above.
9. Effects of Termination
9.1 Upon the termination of the Agreement for any reason:
9.1.1 Any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable.
9.1.2 The Client agrees to pay any outstanding payments in full or the agreed full contract price if the Client terminates the contract before the end of the contract term.
9.1.3 All clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect.
9.1.4 Termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination.
9.1.5 Subject as provided in clause 10 of these Terms and Conditions and except in respect of any accrued rights neither Party shall be under any further obligation to the other.
9.1.6 Each Party shall (except to the extent referred to in clause 6 above) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
10. Data Protection
10.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to and does not relieve, remove or replace a Party’s obligations or rights under the Data Protection Legislation.
10.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Service Provider is the processor.
10.3 Without prejudice to the generality of clause 10.1 above, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Service Provider for the duration and purposes of the Agreement.
10.4 Without prejudice to the generality of clause 10.1 above, the Service Provider shall, in relation to any personal data processed in connection with the performance of the Service Provider of its obligations under the Agreement:
(a) Process that personal data only on the documented written instructions of the Client unless the Service Provider is required by Applicable Laws to otherwise process that personal data. Where the Service Provider is relying on the laws of a member of the European Union or European Union law as the basis of processing personal data, the Service Provider shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Service Provider from so notifying the Client.
(b) Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
(c) Without prejudice to clause 6 (Confidentiality), ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential.
(d) Not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) The Client or the Service Provider has provided appropriate safeguards in relation to the transfer.
(ii) The data subject has enforceable rights and effective legal remedies.
(iii) The Service Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred.
(iv) The Service Provider complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data.
(e) Assist the Client, at the Client’s cost in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
(f) Notify the Client without undue delay on becoming aware of a personal data breach.
(g) At the written direction of the Client, delete or return personal data and copies to the Client on termination or expiry of the Agreement unless required by Applicable Law to store the personal data.
(h) Maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and immediately inform the Client if, in the opinion of the Service Provider, an instruction infringes the Data Protection Legislation.
11. Data Processing
11.1 In this Clause 11 and in the Agreement, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in our Privacy Policy.
12. No Waiver
12.1 No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13. Further Assurance
13.1 Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
14. Costs
14.1 Subject to any provisions to the contrary, each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
15. Set-Off
15.1 Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
16. Assignment and Sub-Contracting
16.1 Subject to sub-clause 16.2 below, the Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
16.2 The Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.
17. Time
17.1 The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties.
18. Relationship of the Parties
18.1 Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency, or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
19. Non-Solicitation
19.1 Neither Party shall, for the Term of the Agreement and for a period of twelve (12) months following its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
19.2 Neither Party shall, for the Term of the Agreement and for a period of twelve (12) months following its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
20. Intellectual Property and Third Party Rights
20.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
20.2 The Service Provider can transfer copyright to the Client only if they own the copyright and cannot transfer rights in something they do not own or do not have title to. This also means the Service Provider cannot transfer rights in licenses they hold. Furthermore, due to the complicated nature of this area of law, The True Marketer advises the Client to seek independent legal advice before using any material or intellectual property that the Client is not certain that they have rights to. Therefore, The True Marketer cannot be liable for Client misuse, whether deliberate or by mistake, of any third-party copyrighted material and does not give the Client implied or express permission to use Third Party Intellectual Property or material.
20.3 It is acknowledged and agreed that the Client will not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format any intellectual property owned by The True Marketer, including trademarks, copyrights, proprietary information, and other intellectual property, in whole or in part, without The True Marketer’s written permission. The True Marketer reserves the right to immediately terminate this contract if the Client is caught breaking this intellectual property clause.
20.4 The Agreement shall continue and be binding on the transferee, successors, and assigns of either Party as required.
21. Notices
21.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
21.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
21.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
21.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
21.3 In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
21.4 All amendments, changes, alterations, cancellations, attachments, or termination by mutual consent and written consents or notices of this agreement must be authorised by The True Marketer’s Managing Director; otherwise, such changes or actions will not be valid.
22. Entire Agreement
22.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty, or other provision except as expressly provided in the Agreement, and all conditions, warranties, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
23. Counterparts
23.1 The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which, when so executed and delivered, shall be an original, but all the counterparts together shall constitute one and the same instrument.
24. Severance
24.1 In the event that one or more of the provisions of the Agreement and/or these Terms and Conditions is found to be unlawful, invalid, or otherwise unenforceable, that provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
25. Dispute Resolution
25.1 The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
25.2 If negotiations under sub-clause 25.1 above do not resolve the matter within 21 Calendar Days of receipt of a written invitation to negotiate, the Parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
25.3 If the ADR procedure under sub-clause 25.2 above does not resolve the matter within 21 Calendar Days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
25.4 The seat of the arbitration under sub-clause 25.3 above shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
25.5 Nothing in this clause 25 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
25.6 The decision and outcome of the final method of dispute resolution under clause 25 shall be final and binding on both Parties.
26. Law and Jurisdiction
26.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
26.2 Subject to the provisions of clause 25 above, any dispute, controversy, proceedings, or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
Exhibit A: Services
See services listed in the proposal/email.
Exhibit B: Standard Hourly Rates
Paid Social Media Marketing Strategist: £75+VAT
PPC Specialist: £75+VAT
Social Media Ads Specialist: £75+VAT
Programmatic Advertising Specialist: £75+VAT
Last updated: 20/05/2024