Last Updated: 06 August 2018
These Terms of Service (“Terms” or “Agreement”) are provided by Zeal Media Limited (“us”, “we”, “our” or “Agency”), a company incorporated in England & Wales with registered company number 7201193. Our registered office is Platform, New Station Street, Leeds, West Yorkshire, LS1 4JB, United Kingdom.
Please read these Terms carefully before engaging with or appointing us in relation to providing you or your company (“you”, “your” or “Client”) with our Services.
Definitions and interpretations of particular words in these Terms are listed in Schedule 1 of these Terms.
Your access to and use of our Services is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all Clients and associated individuals (such as employees third parties) who access or use our Services.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is significant, we will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a significant change will be determined at our sole discretion. You are requested to regularly visit our “Terms of Service” webpage to ensure you have read the most up-to-date version of our Terms. This can be viewed by visiting: https://wehavezeal.com/terms.
By accessing or using our Services you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access our Services.
- AGREEMENT TO ACT AS AN AGENCY
1.1 The Client appoints The Agency to carry out and The Agency agrees to provide the Services to the Client in the UK including advertising on the World Wide Web or any other globally accessible medium (the “Territory”) in relation to the Accounts during the Term in accordance with these Terms.
- TERM OF APPOINTMENT
2.1 Appointment shall commence on the day of written agreement for our Services (the “Commencement Date”) and continue unless terminated sooner by either party under clause 15.
2.2 For certain Services such as retained work there may be a minimum term of appointment. This would be defined in a Contract between The Client and The Agency.
2.3 Where no Contract has been agreed upon by both parties, the terms of appointment is 1 month.
2.4 The appointment will continue in full force and effect unless and until terminated by either party giving 1 months’ notice in writing to the other party. The Client shall be entitled to terminate the appointment immediately if the Agency or its appointed representatives including but not limited to creative agencies and communication suppliers are in breach of any of the conditions of these Terms or cause any communication to be disseminated which could materially be detrimental to the brand and or reputation of the Client, unless such communication has been approved in accordance with clause 6.
- AGENCY SERVICES
3.1 The Agency will perform the Services as agreed for the Client.
3.2 The Agency will allocate suitable personnel with appropriate levels of experience and seniority to service the Accounts. The Client acknowledges and agrees that it may be necessary for The Agency to replace the personnel servicing the Accounts with alternative personnel with similar levels of seniority and experience.
3.3 The Agency shall act in willing co-operation with creative agencies and other communications suppliers appointed by the Client from time to time when developing all communications plans and activities. The Client shall ensure that its creative agencies and other communications suppliers act in willing co-operation with The Agency.
3.4 Where The Agency sub-contract or appoint a third party for the provision of any of the services and obligations under these Terms or under any agreement, The Agency shall remain liable for all its obligations under these Terms as if it carried out such obligations itself.
3.5 The Agency warrants, represents and undertakes that all content that it develops or is developed on its behalf for the deliverables pursuant to these Terms or any applicable schedules of services will not contain Unsuitable Content. The Agency shall notify the Client immediately if it becomes aware that any content in the deliverables may be Unsuitable Content.
3.6 The Agency shall indemnify the Client from and against all Losses arising as a result of any action or claim that the deliverables constitute Unsuitable Content.
4.1 The Client will give The Agency clear briefings and ensure that all the facts given about the Account are accurate. The Agency will co-operate fully with the Client and use reasonable endeavours to make the Services undertaken as successful as is to be expected from a competent agency. The Client will help The Agency do this by making available to The Agency all relevant information and co-operating with The Agency.
- AGENCY STATUS
5.1 The Agency acts in all its contracts as a principal at law.
- APPROVALS AND AUTHORITY
6.1 any reference in these Terms to the Client’s “Written Approval” shall mean Written Approval by directors or employees of the Client authorised to approve The Agency’s plans and schedules and/or expenditure.
6.2 The Client will notify The Agency in writing of any change to the Authorised Persons during the Term. The Agency shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorised Person to provide approval.
6.3 For the purposes of these Terms Written Approval shall mean approval signified by:
6.3.1 any fax, letter or purchase order on the Client’s notepaper bearing the signature of an Authorised Person;
6.3.2 oral approval given by an Authorised Person provided this is in circumstances where time does not permit Written Approval and the said oral approval is confirmed within one Working Day by way either of a contact report from The Agency to the Client or a fax, letter, email or purchase order in accordance with the preceding clause;
6.3.3 e-mail emanating from the personal e-mail address of an Authorised Person.
6.4 The Agency shall, after obtaining the Client’s general Written Approval of its campaign plans, submit to the Client for its specific Written Approval:
6.4.1 schedules for time, space, resource, works to be undertaken and other facilities; and
6.4.2 estimates or quotations of the cost of the various items of the Services covered by these Terms together with terms of payment.
6.5 The Client’s Written Approval of schedules and estimates will be The Agency’s authority to make reservations and contracts for space, time, resources and other facilities under the terms and conditions required by media or suppliers.
6.6 The Agency will advise the Client immediately of any changes in the estimated cost of media or any changes in plans, schedules or work in progress previously approved in writing by the Client.
- AMENDMENTS TO WORK IN PROGRESS
7.1 The Client may request The Agency to cancel or amend any and all plans, schedules or work in progress. The Agency will take all reasonable steps to comply with any such request.
7.2 The Client shall also pay The Agency’s remuneration covering the cancelled or amended Services.
8.1 The Client shall pay The Agency a pre-defined and agreed fee. For the avoidance of doubt, this fee shall be payable in addition to all payments for the net cost of media time, space or any other expense the Client has incurred as a result of the Services undertaken for the Client.
- FLUCTUATIONS IN CURRENCY VALUES
9.1 The cost to The Agency of media, materials or services purchased overseas for The Client may be more or less than the cost anticipated at the date when The Agency ordered the relevant media, materials or services, (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, The Agency will charge the Client at the rate of currency exchange in operation on the date The Agency pays for the relevant media, materials or services, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
- VALUE ADDED TAX
10.1 VAT will be included and itemised separately on Agency invoices, where appropriate, at the rate prevailing from time to time.
10.2 For the avoidance of doubt, all costs, quotes and estimates provided to The Client by The Agency are excluding VAT.
- TERMS OF PAYMENT
11.1 In this clause, payment of an invoice within a specified number of days means payment within that number of days after the date of the invoice in question.
11.2 The Agency will invoice the Client in respect of any fees or costs incurred and the Client will pay the invoice within 30 days of the date of invoice.
11.3 Where fees are charged for monthly retainer work, they shall be invoiced in arrears at the end of each respective month.
11.4 The Client agrees to query with the Agency any invoices or fees they dispute within 14 days of the date of invoice. If no query or dispute has been raised with the Agency after this period, The Client will ensure the invoice is paid in full no later than the due date on the invoice.
11.5 The Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 2% above the base rate from time to time of Bank of England. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which The Agency receives the full outstanding amount together with all accrued interest.
- CONFIDENTIAL INFORMATION
12.1 The parties acknowledge a duty not during or after the Term to disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client.
12.2 In particular during and after the Term The Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply The Agency in the course of any work for the Client.
12.3 From now on in this Clause 12 “Information” will be used to describe the categories of information referred to in clauses 12.1 and 12.2.
12.4 The Agency shall use its reasonable endeavours to ensure these obligations are observed by its own personnel and any third parties to whom Information has to be disclosed in order to enable The Agency to carry out its obligations under these Terms.
12.5 For the avoidance of doubt, the restrictions in this Clause 12 shall not prevent:
12.5.1 the disclosure or use of Information in the proper performance of The Agency’s duties;
12.5.2 the disclosure of Information if required by law;
12.5.3 the disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure.
12.6 The Client acknowledges that nothing in these Terms shall affect The Agency’s right to use as it sees fit any general marketing or advertising intelligence gained by The Agency in the course of its appointment.
- WARRANTIES AND INDEMNITIES
13.1 If there is an error in Advertising as published or publication is delayed or does not occur as planned, The Agency will not be liable unless this is caused by it or its appointed representatives or any appointed third parties’ default or neglect.
13.2 Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other’s breach of these Terms, the party in breach shall indemnify the other subject to the provisions of Clause 14.
13.3 The Client warrants that to the best of its knowledge information and belief all Account information supplied to The Agency before and during the Term will be accurate and not in any way contrary to any law applicable in any part of the Territory. The Client accepts that once it has approved any Advertising for publication, it will indemnify The Agency in respect of any liability or costs or damages incurred as a result of the use of the Advertising.
13.4 The Agency warrants that its personnel working on the Services are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Services.
13.5 The Client confirms that it is expressly understood and agreed that in planning and buying any media activity, The Agency shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:
13.5.1 the number, proportion or type of people likely to be exposed to the Advertising;
13.5.2 the number of exposures each person is likely to receive; and
13.5.3 the cost of achieving these exposures.
Since these are matters which are ultimately beyond The Agency’s control, no warranties can be given by The Agency.
13.6 The Agency warrants, represents and undertakes that:
(a) it shall perform the Services with all reasonable skill and care;
(b) the Deliverables will conform to their description as set out in any communications, documentation or schedules;
(c) in providing the Services and Deliverables it will not use any techniques or commit any act or do anything that breaches any applicable laws or regulations;
(d) it will use personnel to provide the Services who are suitably skilled, trained and experienced;
(e) it will ensure that the manner in which the Services are performed or provided does not adversely affect the name, reputation or business of the Client;
(f) the Deliverables will be free from all Viruses including but not limited to any codes or instructions that are used to access, modify, delete or damage any data contained in the web pages of or other computer programs used by the Client in relation to, the landing pages and or the Websites;
(g) it has, prior to the delivery of the Deliverables to the Client, used a comprehensive and up-to-date Virus checker available to scan the Deliverables;
(h) it shall only access (subject to prior approval) those areas of the Websites that are necessary for the purposes of performing its obligations under these Terms or any applicable Schedule and it shall not modify (or do anything that would have the effect of modifying) the content of the Websites except for as permitted herein; and
(i) the Deliverables will, in so far as they do not comprise Materials, be original works of authorship by The Agency and the use or possession thereof by the Client will not be subject to or give rise to any claim for infringement of any Intellectual Property Rights of any third parties.
- LIMITATION OF LIABILITY
14.1 Nothing in these Terms shall exclude or in any way limit the parties’ liability for fraud, or for death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under these Terms:
14.1.1 The Agency will not be liable under these Terms for any loss of profits, loss of contracts or for any special, indirect or consequential loss whether caused by tort.
14.1.2 the maximum aggregate liability of The Agency under or in connection with these Terms whether in contract, tort (including negligence) or otherwise will in no circumstances exceed the amount of £2,000,000.
14.2 This clause will survive the end of the Term.
14.3 The Client’s maximum aggregate liability under or in connection with these Terms whether in contract, tort (including negligence) or otherwise will in no circumstances exceed the amount of £1,000,000.
15.1 Either party may terminate this Agreement by service of notice in accordance with Clause 2 or stated below.
15.2 Either party may terminate this Agreement forthwith by notice in writing to the other if the other party:
15.2.1 is in material breach of any of the terms of these Terms and, in the case of a breach capable of remedy, fails to remedy such breach within 3 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
15.2.2 (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
15.2.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
15.2.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
15.2.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
15.2.6 ceases to carry on business.
15.2.7 the other party repeatedly breaches any of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms.
15.2.8 The Client may terminate this Agreement or a specific aspect of the services immediately by written notice to The Agency if The Agency is in material breach of this Appointment.
15.2.9 The Client may terminate the Agreement in whole or in part by giving The Agency 1 month written notice following the completion of any Term of Appointment agreed by both parties as defined in clause 2.
15.3 The Agency shall be entitled forthwith to terminate these Terms by written notice to the Client if The Agency is unable to obtain normal credit insurance in respect of the Client and advance payments or acceptable guarantees have not been made available by the Client within 30 days after The Agency’s written request. During the period between The Agency’s request for advance payments or suitable guarantees and the earlier of either the Client providing them or the end of the Term, all The Agency’s obligations in relation to the Services provided shall be automatically suspended, as will any other Agency obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf.
15.4 The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by The Agency until the end of the Term. For avoidance of doubt the Term includes any notice period and payments due include commission on media booked during any notice period but where transmission falls outside such period.
15.5 Upon the termination of this Agreement, The Agency will give the Client all reasonable co-operation in transferring, all reservations, contracts and arrangements with media or others for space or time yet to be used and subject to, all rights and claims thereto.
- ADVERTISING STANDARDS AND LEVIES
16.1 Both parties shall comply with applicable law and Advertising Regulations.
16.2 The Client shall inform The Agency without delay if the Client discovers that any Advertising is false or misleading or in any way contrary to law, Advertising Regulations or to any applicable code.
- DATA PROTECTION
17.1 Each party shall ensure that any mailing list, customer database or other data source deemed as personal information supplied to the other party shall comply with the requirements UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
- INTELLECTUAL PROPERTY
18.1 All Intellectual Property Rights in the Deliverables shall vest and belong to the Client absolutely, and the Client hereby assigns with full title guarantee and free from all encumbrances and rights of third parties all such Intellectual Property Rights in the Deliverables to the Client. The Agency shall execute all documents and take all actions necessary or reasonably requested by the Client to document, obtain, maintain, perfect or assign its rights to the Deliverables.
18.2 The Agency shall hereby, and shall procure that its personnel shall, waive any and all moral rights (including rights of integrity and attribution) in and to the Deliverables.
18.3 The Client grants The Agency a limited, non-exclusive, non-transferrable, revocable and licence to access and use the:
(b) Marketing Materials; and
(c) name, logo, company name and trademarks
solely to provide the Services to the Client in accordance with these Terms and the Branding Guidelines during the Term. The Agency shall seek prior approval as and when it intends to use the Clients licence. The Client reserves the right to revoke and or reject The Agency requests for use of the licence identified in this clause.
19.1 The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to these Terms shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.
- FORCE MAJEURE
20.1 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under these Terms caused by circumstances beyond the reasonable control of a party to this Agreement (including a labour dispute between a third party and its employees) (a “Force Majeure Event”).
20.2 The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.
20.3 If the party claiming the Force Majeure Event has complied with the clause above, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues, and the party will have an extension of time for performance equal to such period. As regards the delay or stoppage arising from the Force Majeure Event:
20.3.1 Any costs arising from such delay or stoppage shall be borne by the party incurring those costs;
20.3.2 The party claiming the Force Majeure Event shall take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event;
20.3.3 If the Force Majeure Event continues for more than 30 consecutive days, either party may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.
21.1 The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of 6 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any executive of the other party who has worked on the Services at any time during the last 12 months of the Term. This clause will survive the end of the Term.
22.1 If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
23.1 The Agency may perform any of its obligations and exercise any of its rights granted under this Agreement through any sub-contractor or third party to the extent only that The Agency shall remain liable to the Client for the actions of these sub-contractors or third parties.
- THIRD PARTY RIGHTS
24.1 A person who is not a party to these Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any clause in these Terms.
- ENTIRE AGREEMENT
25.1 These Terms and the documents referred to in it (the ‘Contractual Documentation’) constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
25.2 The parties agree that neither of them have been induced to enter into any Contractual Documentation in reliance upon any warranty. The only remedy available to the parties for breach of the warranties shall be for breach of contract under these Terms and the parties unconditionally and irrevocably waive any other claims, rights or remedies that may otherwise be available. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
25.3 No variation of these Terms or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
26.1 Any notice, invoice or other communication which either party is required by these Terms to serve on the other party shall be sufficiently served if sent to the other party at its specified address at clause 1 (or such other address as is notified to the other party in writing) as follows:
26.1.1 by hand;
26.1.2 by registered or first class post or recorded delivery; or
26.1.3 by email or facsimile transmission confirmed by registered or first class post or recorded delivery.
Notices sent by registered post or recorded delivery shall be deemed to be served three (3) Working Days following the day of posting. Notices sent by email or facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a Working Day, but otherwise on the next following Working Day. In all other cases, notices are deemed to be served on the day when they are actually received.
- GOVERNING LAW AND JURISDICTION
27.1 This Agreement shall be governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with these Terms or the legal relationships established by this Agreement.
SCHEDULE 1 – DEFINITIONS AND INTERPRETATION
The following words and phrases shall have the following meanings (except where the context otherwise requires):
“Account” or “Accounts” means all the Client’s products and services, including the Client’s corporate image;
“Advertising” means all the Client’s advertising for which The Agency performs buying, planning and undertaking activity for the Client under these Terms;
“Advertising Regulator” means Office of Communications (‘Ofcom’), Broadcast Code of Advertising Practice (‘BCAP’), Code of Advertising Practice (‘CAP’), Advertising Standards Association (‘ASA’ and ‘ASA [B]’) and any other UK regulator or statutory and regulatory body relevant to the Advertising and Services.
“Advertising Regulations” means any present or future code of practice, adjudication, decision, direction or rule of any Advertising Regulator and includes any modifications, amendments or extensions thereof in force from time to time.
“Commencement Date” means the date The Agency receives approval of fees from The Client.
“Deliverables” means any services retained, such as but not limited to; designs, code, video files, guidelines, SEO pages, reports, analyses, statistics, content and other materials required to be delivered by Agency in accordance with these Terms and any schedules agreed.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Key Individual(s)” means those of The Agency’s personnel.
“Pre-existing work” means any Intellectual Property or materials owned or controlled by the either party and existing prior to the Commencement Date or developed outside the scope of the Services
“Services” means those services The Agency will perform for the Client
“Signposting” means any material on The Agency’s or third party or Affiliates’ Website which promotes the Clients product or its Affiliates or the Products and encourages people to visit the Clients landing pages or Website and which signposting material may take the form of one or more graphic representations, text and hypertext links including banner advertisements for the Products which will include a link directly to the relevant pages of the Website to enable the quotation and/or the purchase of those Products online
“Test Criteria” means the criteria set out in the schedules for testing the effectiveness of the services provided by The Agency.
“Term” means the period from the Commencement Date until the termination of these Terms;
“Unsuitable Content” means any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.
“Virus” means anything or device (including any software, code, file or program) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any program or data, or impair the operation of any program or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item.
“Working Day” means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business.
“Year” means each period of twelve consecutive months during the Term beginning with the Commencement Date and its anniversaries.