Ts & Cs

Flourish Direct Marketing Ltd Standard Terms & Conditions

1. Agreement to Act as Agency

1.1. The “Client”, the company named in any relevant statement of work, media schedule, estimate or invoice to which these Terms & Conditions apply (the “SoW”), appoints Flourish Direct Marketing Ltd (the “Agency”) to carry out, and the Agency agrees to provide, the services outlined in the SoW (the “Services”) to the Client during the Term (as defined below) in accordance with these Terms & Conditions.

1.2. Any cancellation, amendment or additions to the Services provided by the Agency must be agreed in writing between the Agency and the Client. The Agency will take all reasonable steps to comply with any such request from the Client provided that the Agency is able to do so within its contractual obligations to suppliers.

1.3. In the event of any such cancellation, amendment or addition to the Services provided, the Client will reimburse the Agency for any charges or expenses committed to or incurred by the Agency. The Client shall also pay the Agency’s remuneration covering the cancelled or amended Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.

1.4. The Agency will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Agency to replace the personnel with alternative personnel with similar levels of seniority and experience.

1.5. The Agency acts in all its contracts as a principal at law and the Client appoints the Agency as sole provider to perform the Services.

1.6. The Agency may outsource or sub-contract its performance of the Services or part thereof with the prior consent of the Client, such consent not to be unreasonably withheld or delayed.

 

2. Term of Appointment

2.1. These Terms & Conditions shall be effective from the date of the first relevant SoW and shall continue until all Services are completed and delivered pursuant to any and all relevant SoW, or unless terminated pursuant to Clause 7 (the “Term”).

 

3. Co-operation

3.1. 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 care and skill to make the Materials (as defined below) as successful as is to be expected from a competent communications agency. The Client will help the Agency do this by making available to the Agency all relevant information and co-operating with the Agency.

 

4. Fees and Production Costs

4.1. The Client shall pay the Agency the fee for the Services as set out in any relevant SoW, or as otherwise agreed between the parties in writing, (the “Fee”). Unless otherwise stated in the SoW, the Fee is earned on a fixed and non-reconcilable basis and shall be payable in addition to all production, studio costs, and other disbursements and expenses committed to or incurred.

4.2. All production costs and expenses are normally invoiced at the value of estimates set out in the relevant SoW.

4.3. The Client will pay all Fees and other production costs and expenses within 30 days of the date of the invoice, or as otherwise agreed between the parties in writing. Where suppliers require payment in advance or at various stages of production, the Agency will notify and obtain the Client’s written agreement in advance and payment will be made immediately upon presentation of an invoice or by the date specified thereon.

4.4. Purchase Orders (“POs”) will be issued in advance for all work to be paid for by the Client. Should this not be possible, the Client must approve the estimate in writing in advance and this will serve as sufficient authority until the PO is issued.

4.5. All amounts stated in any SoW or estimate, or quotation shall be exclusive of VAT and similar taxes and surcharges regardless of how they are denominated (collectively, “Transaction Taxes”). The Client shall be solely responsible for paying all relevant Transaction Taxes that are lawfully levied or imposed by reason of the transactions covered under these Terms & Conditions at the rate prevailing at the time the invoice is issued.

4.6. Client shall be responsible to pay any Transaction Taxes payable by Agency on the goods or services used or consumed by Agency in providing the Services where the tax is imposed on Agency’s acquisition or use of such goods or services and the amount of tax is measured by Agency’s costs in acquiring such goods or services.

4.7. Client acknowledges and agrees that, in relation to the occurrence of events which are uninsurable risks (for example, if there is a postponement, delay, relocation or material changes or cancellation need to be made to Services due to Covid-19), (i) Agency shall not be in breach of these Terms & Conditions and (ii) without prejudice to any other part of these Terms & Conditions, the Agency shall be entitled to recover from Client and Client shall pay to Agency such unavoidable costs incurred or committed to by Agency which are attributable to such, postponement, delay, relocation or material changes, and, in the event of cancellation, an amount in respect of work performed by Agency up to the date of the notice of cancellation, together with any unavoidable costs actually and already incurred or committed to by Agency. Agency and third-party suppliers shall use all commercial efforts to mitigate any such costs.

 

5. Media Charges

5.1. In respect of media buying Services, the Agency shall invoice media costs payable by the Client for media space booked by the Agency based on the negotiated gross cost of media or as otherwise approved by the Client on the relevant SoW (“Media Charges”) together with the associated Fee and any industry related charges as set out in Clause 5.5.

5.2. The Client acknowledges and understands that media costs, ratings and/or other campaign metrics as set out in any SoW represent estimates based on market predictions and that the final actual pricing, channel share and/or ratings performance may therefore differ from that set out in any SoW.

5.3. The Agency purchases media on behalf of its clients as principal and at its own risk and may, on occasion, receive from the media owner’s volume or other discounts, bonuses, free or discounted media space or any other equivalent benefit (“AVBs”) derived from the Agency’s aggregate spend across many clients. The Client hereby agrees that the Media Charges incurred by the Agency for the Client pursuant to these Terms & Conditions may be aggregated in any such Agency AVB arrangements with media suppliers. The Agency reserves the right to utilise such AVBs to discount media costs to the Agency and, in such instances, the final media costs payable by the Agency to relevant media owners may differ from the Media Charges payable pursuant to these Terms and Conditions. The Agency will always act in media neutral manner in the delivery of the media buying and planning Services hereunder.

5.4. Unless otherwise stated in the applicable SoW, where the Agency verifies the placement of advertisements it is the Clients’ responsibility to notify the Agency in writing within 30 days of date of insertion if the Client advertisement does not appear or is to a different specification than that agreed in accordance with these T&Cs or the applicable SoW. In the absence of such notification the advertisements will be deemed to have appeared as specified and are payable in full by the Client.

5.5. Standard Payment terms are 28 days from date of invoice, unless the parties agree otherwise in writing, with the exception of TV media which is due within 15 days of the date of invoice. Surcharges applied by media owners may be levied in the case of late payment.

5.6. The Client accepts it will be liable for such late copy charges if the Agency is not responsible for providing such copy or at fault for failing to do so on time.

 

6. Services

Media Services (Including Specialist Media Services)

6.1. The Client hereby authorises the Agency or Agency Group Companies when providing ad serving through digital channels, programmatic (addressable) media, analytics, retargeting, or search, to use third-party cookies, pixel tags, web beacons, technologies, and other relevant tags and data sources (together, “Tags”) to collect and use data (which may include IP addresses and other device identifiers) gathered with respect to one or more of Client’s owned and/or operated or affiliated websites (collectively, the “Sites”). Client acknowledges to the Agency and its Group Companies that it is solely responsible for the relevant privacy policies on the Sites, to ensure that data collection through Tags and data usage complies with all applicable laws, rules and regulations, including but not limited to applicable data/privacy laws, self-regulatory principles, guidelines, rules and codes of conduct (e.g., EDAA) to which third parties providing services, platforms, and data as part of the Agency Group Company Services are bound (collectively, “Applicable Laws”). Client represents, warrants and covenants that, with respect to each website, mobile app, or other digital property owned, operated or controlled by Client, Client does and throughout the term will: (i) prominently display and comply with a privacy policy that (A) fully, accurately, and clearly discloses that ads or other content may be served by third parties (including third-party ad servers), and that such third parties use or may use cookies or other code or technology to collect user information; (B) conspicuously enables or links to a page that enables the user to opt out of having data used for online advertising; and (C) otherwise complies with all Applicable Laws. Client represents, warrants and covenants that it will not sublicense or resell the Tags to any third party, or share the Tags with any third party without Agency’s or Agency Group Company’s prior written approval.

6.2. Agency may perform the following specialist services: (i) SEO & PPC, (ii) Social Media, (iii) Addressable Buying Services. In such circumstances the remaining (and applicable) terms of this clause 6 shall apply.

6.3. Media Charges and other costs and related expenses, including any Fee to be paid to the Agency or any Agency Affiliate for providing Specialist Media Services (“Specialist Media Charges”), shall be approved by Client in writing including in a statement of work, media buy authorisation, media plan, insertion order, purchase order, or otherwise pursuant to these Terms and Conditions (an “Approval”). The Specialist Media Charges are fixed and non-reconcilable unless the parties agree otherwise in writing. Ad serving, Ad verification or technology costs associated with the implementation and measurement of media campaigns executed by Agency or Agency Affiliates shall be charged in addition to any Specialist Media Charges.

6.4. In providing those media services as contemplated by this clause 6 the Agency may use one or more proprietary or third-party technologies (together, “Ad Technology”) and may also purchase media and/or services through or from exchanges, demand side platforms, websites, networks or companies run by third parties such as Google, Facebook, Yahoo, X (formerly Twitter), AOL or others (“Third Party Platforms”). Agency disclaims all representations, warranties, liabilities or indemnities with respect to the Technology and/or Third-Party Platforms, except that Agency will use commercially reasonable efforts to provide any available third-party pass-through rights to such Technology and/or Third Party Platforms.

6.5. In the event that Agency grants the Client access to any third party services (including, without limitation, any Technology or Third Party Platforms) as part of the Specialist Media Services, the Client shall comply with all applicable privacy policies, terms and conditions and/or any other instructions communicated to Client by Agency, any Agency Group Company or the applicable third party (it being acknowledged by the Client that, for example, third party providers such as Google’s Double Click Bid Manager may use data gathered from Agency Group Company’s and/or Client’s use thereof in a manner that does not identify such Agency Group Company, Client or end users as the source of such data).

SEO & PPC

6.6. These services consist of the provision of (i) keyword research, site auditing and technical consultancy in order to improve client site ranking and share of voice in all major search engines across all digital formats (“SEO”); and (ii) media management across Google, YouTube and Bing search engines, including account setup and management, keyword research, content enhancement, optimisation and billing (“PPC”).

6.7. Client shall be solely responsible for approving relevant and appropriate keywords, titles and descriptions and content (“Search Content”) relating to SEO and PPC products or services. Client will review all such Search Content and confirm the legality, accuracy, completeness and propriety of such material and will also be responsible for the determination of infringement or non-infringement of any trademarks or service marks provided by Client.

6.8. Client acknowledges and agrees that a media vendor may, in its sole discretion, refuse to display or continue to display any of Search Content, that a Client website may be excluded from search engine or social media platform at any time at the sole discretion of the search engine or platform, and that social media platforms may be changed by third parties that may adversely affect the visibility of Client’s social media profiles. Agency shall not be liable for such refusal, exclusion or changes.

6.9. In performing SEO services, Agency does not have control over exact positioning and traffic of search results, search engine result algorithms, or other factors, and therefore cannot guarantee any exact positioning of Search Content on search engines or other results. Client also acknowledges that search engines may take two (2) to four (4) months or longer to index new webpages or social media assets, and Agency shall not be responsible for such timing, and, occasionally, search engines will drop listings for no apparent or predictable reason. Often listings will reappear without any additional submissions. Should the listing not reappear, Agency will re-submit the website based on the current policies of the search engine in question.

6.10. Due to the competitiveness of some keywords and keyword phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Agency does not guarantee where Client will be positioned by the search engine for any particular keyword, phrase or search term.

6.11. If Client decides to submit to a directory which requires a fee and/or pursue paid linking opportunities, the costs will be passed through directly to Client and are incremental to any approved fixed fees.

6.12. Client shall be responsible for implementing code changes to Client’s website required in connection with search services, unless the parties agree otherwise in writing. Agency is not responsible for Client’s overwriting SEO work to Client’s website(s) (e.g., Client webmaster making changes and uploading over recommendations already provided).

6.13. Client website migrations and/or website redesigns that occur while services are being performed may affect such services. Agency shall not be responsible for any delays, service disruptions, degradation in service or inability to perform due to Client website changes, and Client shall pay any additional costs or fees reasonably required to perform the previously agreed services, in light of the changes.

Social

6.14. Additional fees are required for managed services for delivering performance advertising campaigns through various social networks advertising platforms using native tools and third-party technology such as: Creating brand or company online Profiles; Strategic Planning for social; Effective setup and Management of branded social networks; Creating methods that engage conversation with target audiences; Building social applications to maximise sales, branding potential; Reporting & Analysing on social media; Updating, creating content including images, video content, promotions. Agency may as part of the Services be required to post communications on the Client’s social media platforms or otherwise manage its social media accounts. Where the Client requests such Social Media Services through Third-Party Platforms such as Amazon, Google, Facebook, X (formerly Twitter), TikTok, Snapchat and Instagram and others, the Client acknowledges these Platforms will: (1) process its data on their platforms, and (2) require the Agency to warrant it has authority to bind the Client to their standard terms and conditions. The Client therefore hereby grants such authority to the Agency to bind it to the Third-Party Platform terms and further warrants to the Agency that it will comply with those Third-Party Platform terms and conditions.

Addressable services

6.15. Addressable (sometimes referred to as “programmatic”) services may involve any media type planned or purchased through an automated platform, including but not limited to digital, online, mobile, video, search, social, television, radio, lead generation, or out-of-home, and may include automated as well as direct buys.

 

7. Intellectual Property Rights and Warranties

7.1. Where the Agency is providing creative services, the Agency shall, upon Client’s request, assign to the Client the intellectual property rights in the material created solely by the Agency specifically for the Client and which are owned by the Agency and capable of assignment (“Agency Materials”). Such assignment shall be made provided all obligations of the Client arising from these Terms and Conditions (including without limitation those relating to payment and notice periods) have been met. Such assignment shall be subject to clause 7.2 below.

7.2. As regards any third party owned materials that the parties desire to make use of in the provision of the Services, the Agency shall use reasonable endeavours to procure an assignment of any necessary third-party owned materials in the first instance but where such assignment is not possible the Agency shall obtain for the Client all such usage rights in such materials as are deemed necessary and agreed by the parties at the time such material is selected or obtained. The Agency shall not enter into any licence without the Client’s consent for the terms and fee of such licence. The Client warrants and undertakes that it shall use the Services and deliverables strictly pursuant to these Terms & Conditions and any licence for third-party materials obtained hereunder.

7.3. The Agency warrants that the Agency Materials are the original work of the Agency and shall not infringe any third-party rights.

7.4. Notwithstanding the above the Agency shall, with the Client’s written consent, be able during and after the relationship to use the materials created for the purpose of promoting its own business and for purposes associated with the entry and conduct of advertising industry awards schemes.

7.5. Where the Agency is providing media services the Client warrants that it is the owner, licensor or has the right to authorise use of all the advertising content provided by it or its authorised third parties and agents to the Agency (the “Advertising”) and this will not infringe copyright, trademarks, trade names, design rights or data base rights (the Intellectual Property Rights) of any third-party and will not contain any material which is obscene, offensive, defamatory and will comply in all respects with all relevant laws, rules and Regulations.

7.6. The Client shall indemnify the Agency and keep the Agency indemnified in the event of any losses, costs and expenses (including reasonable legal costs) of whatsoever nature suffered by the Agency in connection with a breach or an alleged breach of Clause 6.5. 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 the wilful default or gross negligence of the Agency.

7.7. All processes, methodologies, models, and data provided, developed, optimised or improved by Agency or an Agency Group Company in connection with its provision of Agency Group Company Services shall remain the property of the Agency or that Agency Group Company. Neither Agency nor Agency Group Companies grant Client any rights in any third-party data or information other than as expressly set out in this Schedule.

 

8. Third Party Contracts

8.1. The Client acknowledges and agrees that the Agency may have to enter into contracts with third-party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts, as may be negotiated by the Agency on a case-by-case basis (“Third-Party Contracts”). Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third-Party Contracts, the Client hereby acknowledges and agrees that: (i) its right to use or otherwise benefit from any Services acquired under such Third-Party Contracts (including any rights of amendments, omission and/or cancellation) shall be as set out in such Third-Party Contracts; and (ii) any charges or liabilities (to the extent caused by an act or omission of the Client or any third-party acting for or on its behalf) for which the Agency is liable under such Third-Party Contracts (including cancellation payments, retrospective Media Charges and/or other penalties) shall be the responsibility of the Client.

 

9. Termination

9.1. Either party may terminate these Terms & Conditions by giving the other party written notice as set out in the relevant SoW. In the absence of a specific notice period in the relevant SoW, the terminating party shall provide such notice as is reasonable having regard to the relevant SoW.

9.2. Either party may terminate these Terms & Conditions immediately by notice in writing to the other if the other party is in material breach of any of these Terms & Conditions and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice, giving full particulars of the breach and of the steps required to remedy it.

 

10. Liability

10.1. The Agency’s maximum aggregate liability under these Terms & Conditions is no greater than the total Fees paid to the Agency under the relevant SoW. Neither party shall be liable for any indirect or consequential losses.

10.2. By executing a relevant media buying approval, Client may authorise the Agency to purchase media including through one or more Third-Party Platforms and the Client acknowledges that in order to use certain Third-Party Platform features or functionalities for Client’s benefit, including any beta features, those Third-Party Platform terms will also apply to Client. Agency and/or the relevant Agency Affiliate will pass through to Client any warranties, representations and indemnifications that Agency or the relevant Agency Affiliate are able to secure from the Third-Party Platforms for the benefit of Client, but the Agency is not otherwise liable for the Third-Party Platforms.

 

11. Miscellaneous

11.1. The cost to the Agency of materials or services purchased overseas may be more or less than the cost anticipated as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at Natwest plc’s exchange rate on the date the Agency pays for the relevant materials or services.

11.2. A person who is not a party to these Terms & Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms & Conditions.

11.3. These Terms & Conditions constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of these Terms & Conditions. No variation of these Terms & Conditions 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. Unless specifically stated in these Terms & Conditions or in any relevant SoW, where there is any discrepancy between the terms contained herein and those stated on any relevant SoW the terms of these Terms & Conditions shall take precedence.

11.4. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales and agree that these Terms & Conditions will be governed by and construed in accordance with the laws of England and Wales.