GENERAL TERMS
- INTRODUCTION
1.1 These terms and conditions (“Ts & Cs”) apply to services (“Services”) supplied by Mindfield
Advertising and Marketing Limited (“we”, “us” or “our”). The Ts & Cs comprise the General
Terms and the terms in the Schedules. Please refer to the relevant Schedule (or Schedules)
for the specific terms that apply to the Services you purchase from us. Not all Schedules will
be relevant to the Services you have asked us to provide.
1.2 In these Ts & Cs, “you” (or “your”) refers to the person identified in the Order Form as the
party whose Order we accept. Where you act through an Advertising Agent, references to you
include that person.
1.3 Please read these Ts & Cs carefully. We draw your attention particularly to clause 11 below
(Limitations of Liability and Indemnity).
1.4 These terms cover the following products and any other products to which these terms are
expressed to apply (Products).
SCHEDULES PRODUCTS
A Creative Services Creative Services Commercial Production
B Media Services Media Buying
C Market Research Research - DEFINITIONS AND INTERPRETATION
2.1 In the General Terms and the Schedules the following definitions apply:
“Advertisement” any advertising material (including any promotion, sponsorship, tagline or
microsite) provided by you or an Advertising Agent for broadcast,
transmission, publication or other delivery on any of the radio stations,
websites, mobile or other platforms on which the Campaign is being
broadcast;
“Advertising Agent”
the advertising agency, if any, acting on your behalf;
“Affiliate” a subsidiary or holding company (as defined in section 1159, Companies
Act of 2006) of a company, or another such subsidiary of its holding
company (as so defined);
“Applicable Laws” any EU or UK laws applicable to us which require us to process personal
data in any way;
“ASA” the Advertising Standards Authority;
“Assigned Intellectual Property Rights”
all of the Intellectual Property Rights created by us specifically for you in the
Deliverables (or parts of them) and excluding any Intellectual Property
Rights in the Deliverables (or parts of them) which are Third-Party
Intellectual Property Rights or which we did not create specifically for you
(for the avoidance of doubt, no Intellectual Property Rights will be created
by us specifically for you where we have not expressly confirmed that we
will do so in writing);
“BCAP” the UK Code of Broadcast Advertising;
“Broadcast” includes broadcast, transmission, publication, use or other delivery on radio
stations, websites, mobile or other platforms (as appropriate); and “the
Broadcast” means the broadcasting of the Advertisement as part of the
Campaign;
“Business Day” a day other than Saturday or Sunday or a bank holiday in England and
Wales;
“Campaign” the delivery of the Advertisement according to these Ts & Cs and during the
time period set out in the Order Form or as otherwise agreed in writing
between you and us;
“CAP” the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct
Marketing;
“Claim” has the meaning given in in clause 12.2;
“Client Materials” all documents, information, items and materials in any form, whether owned
by you or a third party, which are provided by you (or on your behalf) to us
in connection with the Services;
“Change Order” Has the meaning given in clause 10.1;
“Mindfield” Mindfield Advertising and Marketing Limited (company no: 13049909) having
its registered office at c/o Communicorp, XYZ Building, 2 Hardman
Boulevard, Manchester. M3 3AQwith VAT registration number
GB185454580;
“Contract” the contract for the Services comprising the Order Form and these Ts & Cs;
“Control” has the meaning given in section 450 of the Corporation Taxes Act 2010;
“Copy” the content, design and appearance of any proposed Advertisement
“Data Protection
Legislation”
the EU General Data Protection Regulation (GDPR), the UK Data
Protection Act 2018 (DPA) and any EU or UK legislation supplementing,
amending or replacing the GDPR or the DPA, including (where applicable)
the guidance and codes of practice issued by the Information Commissioner
or any other relevant authority;
“Deliverables” any output of the Services to be provided by us to you as specified in the
General Terms, Schedules and any other documents, products and
materials provided by us to you in relation to the Services (but excluding
any of our property or equipment);
“Digital Content
Production”
the provision and production of podcasts, including recording and
engagement of individuals for content, the provision and production of video
content and other digital content production;
“Expenses” all expenses incurred or to be incurred in connection with the Services,
including (to the extent applicable) materials and services, travel and
subsistence, artwork, photography, mechanical artwork handling,
typesetting, art direction, printing, the costs of hiring a venue and the fees
of outside consultants and, save where we are sub-contracting the whole or
a substantial part of the Services, sub-contractors;
“General Terms” the terms and conditions in the main body of these Ts & Cs;
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and
related rights, trade marks and service marks, business names and domain
names, rights in get-up and trade dress, goodwill and the right to sue for
passing off or unfair competition, rights in designs, database rights, rights
to use, and protect the confidentiality of, confidential information (including
know-how and trade secrets), and all other intellectual property rights, in
each case whether registered or unregistered and including all applications
and rights to apply for and be granted, 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;
“Losses” losses, damages, liabilities, claims, demands, actions, penalties, fines,
awards, costs and expenses (including reasonable legal and other
professional expenses), subject to clause 11.1;
“Order” an order to us to supply the Services in relation to a Campaign or Project or
otherwise;
“Order Form” the order form we supply in connection with an Order, including the details
of the Campaign, Project and/or other Services, the agreed commercial
terms and delivery schedule;
“Price” the sums payable to us for the Services (including Expenses where
applicable), as shown on the Order Form;
“Products” has the meaning given in clause 1.4 of the General Terms;
“Promotional Prize”
has the meaning given in clause Error! Reference source not found. of
the General Terms;
“Project” means any discrete project agreed between the parties from time to time
under which we are to perform Services and/or supply Deliverables to you,
as more fully described in these Tc & Cs and the Order Form and in the case
of Advertising shall mean a Campaign;
“Services” the services that we agree to supply under these Ts & Cs;
“Specification” the specification of the Deliverable(s) set out in the Order Form and, where
applicable, any more detailed technical specification that has been approved
by us and, where the Order Form contains details of the Campaign Delivery,
the Campaign Delivery;
“Third-Party
Intellectual
Property Rights”
all Intellectual Property Rights comprised in the Deliverables which are not
created by or owned by the parties to the Contract.
2.2 In these Ts & Cs, references to clauses, schedules and appendices are to clauses of and
schedules to and appendices to these Ts & Cs. The Schedules form part of these Ts & Cs.
2.3 Where any provision contained in the Schedules, General Terms or an Order Form conflicts
with any provision the following order of precedence shall apply:
2.3.1 Schedules;
2.3.2 General Terms;
2.3.3 Order Form.
2.4 Unless the context otherwise requires:
2.4.1 a person includes a legal person (such as a limited company) as well as a natural
person;
2.4.2 the words “include” and “including” or any similar term shall be construed without
limitation; and
2.4.3 any reference to an enactment of legislation includes any subordinate legislation made
from time to time under it and is to be construed as references to that enactment as from
time to time amended or modified or any enactment replacing it.
2.5 The headings in these Ts & Cs are for ease of reference only and shall be disregarded in
construing or interpreting the Contract. - FORMATION OF THE CONTRACT
3.1 These Ts & Cs govern any contract for the supply of Services by us, to the exclusion of any
other terms and conditions subject to which you make, or purport to make, an Order.
3.2 Any Order must be submitted using the Order Form, signed by you or your authorised
representative and sent to us in the manner shown on the Order Form. The Order Form may
be signed electronically using DocuSign or other form of electronic or digital signature.
3.3 No contract exists between you and us for the supply of any Services until we receive your
signed Order Form and the earlier of:
3.3.1 us sending you confirmation of our acceptance of the Order by email to you or your
authorised representative; or
3.3.2 us commencing provision of the Services,
following which there is a binding legal contract between you and us.
3.4 Once an Order has been accepted by us, no variation to the Order or these Ts & Cs will be
binding unless agreed in writing between your authorised representative and ours.
3.5 We may change these Ts & Cs from time to time without notice to you in relation to future
Orders. - YOUR OBLIGATIONS
4.1 You will give us full and clear instructions as to your requirements for the Services to be
included in an Order Form, including full details of the dates by which each stage of the
proposed Services are to commence and finish (where applicable). You will ensure that all
the facts given to us in connection with Services are accurate and shall act in willing cooperation with us in all matters relating to the Services.
4.2 You will promptly supply to us (at no charge) any Client Materials reasonably required by us
or otherwise necessary to provide the Services and Deliverables and shall ensure that you
have all rights and licences in place to enable use by us of all Client Materials.
4.3 If you do not fulfil your obligations under or in connection with these Ts & Cs (including your
payment obligations), then to the extent that such failure prevents us from performing any
Services and/or providing any Deliverables in accordance with these Ts & C, we will be
relieved of our obligations to you, and we shall not be liable for any Losses incurred by you
as a result of any such failure. - THE SERVICES
5.1 We agree to supply the Services on the basis shown on the Order Form, subject to these Ts & Cs.
5.2 We reserve the right not to accept any Order for any reason at our discretion.
5.3 All Specifications are approximate only and shall not form part of the Contract unless
expressly stated in the Order Form. Any non-material deviation from or variation of the
Specification by us shall not constitute a breach of the Contract.
5.4 We reserve the right to alter the Specifications and the Services (as we reasonably see fit)
without prior reference to you so long as the Services shall comply in all material respects
with your requirements known to us. - INTELLECTUAL PROPERTY RIGHTS
6.1 Unless otherwise specified in the relevant Schedule:
6.1.1 we and our licensors shall retain ownership of all Intellectual Property Rights in the
Deliverables, excluding the Client Materials,
6.1.2 you and your licensors shall retain ownership of all Intellectual Property Rights in the
Client Materials;
6.1.3 where we use the Client Materials for the Services, but make additions or alterations
to it by agreement with you, we will own all copyright and other Intellectual Property
Rights in respect of those additions or alterations, to the extent they are severable
from the Client Materials;
6.1.4 we grant you, or shall procure the direct grant to you of, a fully paid-up, worldwide,
non-exclusive, royalty-free licence during the term of the Contract to copy and modify
the Deliverables (excluding the Client Materials) for receiving and using the Services
and the Deliverables for your reasonable business purposes (but you shall have no
right to sub-license, assign or otherwise transfer the rights granted in this clause); and
6.1.5 you grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to
copy and modify the Client Materials for the term of the Contract for the purpose of
providing the Services.
6.2 You warrant that the receipt and use of the Client Materials in the performance of the Contract
by us, our agents, subcontractors or consultants shall not infringe the rights, including any
Intellectual Property Rights, of any third party.
6.3 You shall indemnify us (together with our directors, employees or authorised agents) in full
against all liabilities, costs, expenses, damages and losses (including any direct, indirect or
consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs
(calculated on a full indemnity basis) and all other reasonable professional costs and
expenses) suffered or incurred by us arising out of or in connection with any claim brought
against us, its agents, subcontractors or consultants for actual or alleged infringement of a
third party’s Intellectual Property Rights, arising out of, or in connection with, the receipt or
use in the performance of the Contract of the Client Materials - PAYMENT TERMS
7.1 Unless we otherwise agree in writing with you or the relevant Schedule provides otherwise,
the Price for the Services, as shown on the Order Form, will be invoiced in advance of the
Services being provided and must be paid in advance in cleared funds at least 10 days prior
to the start of the Services being provided. Please refer to Schedules for details of when we
accept payment of the Price on other terms.
7.2 We will advise you of any Expenses that arise during the Project. We may invoice you for
actual or anticipated Expenses at any time.
7.3 The Price is subject to VAT at the applicable rate, unless there is an available exemption and
you provide us with a VAT exemption certificate or declaration prior to being invoiced for the
Services.
7.4 The Price must be paid in the manner shown in the Order Form (or in the event the Order
Form is silent, by cheque, bank transfer or credit/debit card), without any withholding,
deduction, set-off or counterclaim.
7.5 Time of payment is of the essence in respect of the obligation to pay the Price (including
Expenses). If you fail to pay the Price (including Expenses) when due, we may:
7.5.1 discontinue all work on the Services (including, where relevant, the right to refuse to
broadcast, or cease broadcasting, any Advertisement); and/or
7.5.2 terminate the Contract with immediate effect; and/or
7.5.3 charge you interest at a rate of 4% per annum above the Barclays Bank base lending
rate from time to time on any amount due and unpaid.
7.6 If we incur additional direct costs in performing the Services as a direct result of any breach
by you of your obligations under these Ts & Cs we shall be entitled to recover such additional
costs from you. - WARRANTIES
8.1 You represent, warrant, undertake and acknowledge that:
8.1.1 you are entitled to enter into the Contract and to grant to us the rights that you purport
to grant to us under the Contract;
8.1.2 the details you supply for the Order Form and all other information you supply in
connection with the Services is, and will be at the relevant time, accurate, complete
and true;
8.1.3 you will comply with all applicable laws and regulations relating to data protection,
anti-bribery, anti-corruption and anti-money laundering in connection with the
Contract.
8.2 We undertake that, without limiting any other provision of these Ts and Cs, and subject as
provided in them, we will in providing the Services act in accordance with best practices in the
industry, and take proper steps to comply with all applicable laws, including (without limitation)
the Bribery Act 2010 and the Modern Slavery Act 2015. - ANTI-BRIBERY AND ANTI-CORRUPTION
9.1 We shall:
9.1.1 comply with all applicable laws, statutes, regulations relating to anti-bribery and anticorruption including to the Bribery Act 2010 (Relevant Requirements);
9.1.2 not engage in any activity, practice or conduct which would constitute an offence
under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct
had been carried out in the UK;
9.1.3 notify you (in writing) if we become aware of any breach of clause 9.1.1 or clause
9.1.2, or has reason to believe that it or any person associated with it has received a
request or demand for any undue financial or other advantage in connection with the
performance of the Contract.
9.2 We shall ensure that any person associated with us who is performing services in connection
with the Contract does so only on the basis of a written contract which imposes on and secures
from such person terms equivalent to those imposed on us in this clause 9 (Relevant Terms).
We shall be responsible for the observance and performance by such persons of the Relevant
Terms.
9.3 For the purpose of this clause 9, the meaning of adequate procedures and whether a person
is associated with another person shall be determined in accordance with section 7(2) of the
Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and
6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 9 a
person associated with us includes any of our subcontractors. - CHANGE CONTROL
10.1 Either party may propose changes to the scope or execution of the Services but no proposed
changes shall come into effect until a Change Order has been signed by both parties. A
Change Order shall be a document setting out the proposed changes and the effect that those
changes will have on:
10.1.1 the Services;
10.1.2 the Price;
10.1.3 the timetable of the Services; and
10.1.4 any other terms of these Ts & Cs.
10.2 If we wish to make a change to the Services we shall provide a draft Change Order to you.
10.3 If you wish to make a change to the Services:
10.3.1 you shall notify us and provide as much detail as we reasonably require of the
proposed changes, including the timing of the proposed changes; and
10.3.2 we shall, as soon as reasonably practicable after receiving the information at clause
10.3.1 provide you with a draft Change Order implementing some or all of the changes
requested or we will explain why we can’t agree to the change(s) requested.
10.4 If the parties:
10.4.1 agree to a Change Order, they shall sign it and that Change Order shall amend the
Contract; or
10.4.2 are unable to agree a Change Order, they shall discuss the draft Change Order and
negotiate in good faith to agree amendments to the draft Change Order such that it is
agreed by both parties.
10.5 Nothing in this clause shall prevent us from agreeing less formally to what we consider to be
minor changes to the Services, by agreeing to a requested change in writing without drafting
a Change Order. - LIMITATIONS OF LIABILITY AND INDEMNITY
11.1 Nothing in these Ts & Cs limits or excludes our liability for (a) death or personal injury resulting
from our negligence; (b) our fraud or fraudulent misrepresentation; or (c) any other liability we
cannot lawfully limit or exclude.
11.2 Subject to clause 11.1, all warranties, conditions and other terms implied by statute or
common law are excluded from the Contract, to the fullest extent permitted by law.
11.3 Subject to clause 11.1, if we commit a breach or default in relation to the Contract, we will not
be liable to you for (a) any loss of profits, loss of income, loss of business, loss of opportunity,
loss of goodwill, loss of contracts, loss of reputation or loss of, damage to or corruption of
data, howsoever arising; or (b) any indirect, special or consequential loss.
11.4 Subject to clause 11.1, our total liability in contract, tort (including negligence), breach of
statutory duty, or otherwise, arising under or in connection with the Contract in respect of all
breaches of duty shall not exceed the Price for the Project in respect of which the breach or
default has occurred or, where the Services do not form part of a Project, the Price payable
in the 12 months prior to the breach of duty giving rise to the claim or first such claim if there
is more than one.
11.5 You will indemnify and keep indemnified us (together with our directors, employees or
authorised agents) against all claims, costs (including legal costs and disbursements),
liabilities, losses and expenses, whether or not reasonably foreseeable, incurred as a result
of any breach of the Contract by you or as a result of any act or omission of you (including
any act or omission of your directors, partners, employees or authorised agents). - INSURANCE AND CLAIMS AGAINST THIRD PARTIES
12.1 Where we provide the Services at your premises or any location arranged by you, during the
Contract and for a reasonable period after termination you shall maintain in force insurance
policies with reputable insurance companies, against all risks that would normally be insured
against by a prudent business person in connection with the risks associated with our
provision of the Services at such premises or other location and produce to us on demand full
particulars of that insurance and the receipt for the then current premium.
12.2 We shall not be liable in respect of a claim under these Tc & Cs or otherwise in connection
with the Services (“Claim”) where you are entitled to make a claim under a policy of insurance
in respect of any matter or circumstance giving rise to such Claim unless you first make a
claim against your insurers pursuant to the relevant policy. Our liability in respect of any such
Claim shall then be reduced by the amount recovered under such policy of insurance (less all
reasonable costs, charges and expenses incurred by you in recovering that sum),or
extinguished if the amount so recovered exceeds the amount of the Claim.
12.3 In the event that you are at any time entitled to recover or otherwise claim reimbursement
from a third party in respect of any matter or circumstance giving rise to a Claim the following
provisions shall apply:
12.3.1 you shall use all reasonable endeavours to enforce such recovery or seek such
reimbursement from the relevant third party before making a Claim against us;
12.3.2 our liability in respect of the related Claim shall be reduced by the amount (if any)
actually recovered from the relevant third party (less all reasonable costs, charges
and expenses incurred by you in recovering that sum), or extinguished if the amount
recovered exceeds the amount of the relevant Claim.
12.4 You will be responsible for the insurance of any Client Materials against accidental loss or
damage, while they are used in connection with the Services and until the date of their
disposal or return to you in accordance with this clause. - FORCE MAJEURE
13.1 We will have no liability if we are prevented or delayed in carrying out any of our obligations
under the Contract by any act or things beyond our control or any other act or event that
affects or may affect our ability to provide the Services, including the programming or
Campaigns, (including any law or regulatory order, power failure, pandemic, breakdown or
failure of software or machinery, interruption of broadcast, accident, act of God, storm, fire or
flood, death of royalty or other public figure, terrorist action or war, failure of sub-contractors,
suppliers or labour dispute) (“Force Majeure Event”).
13.2 If a Force Majeure Event continues for more than three months, we or you may terminate the
Contract with immediate effect by written notice. - TERMINATION
14.1 Where it is possible for you to terminate the Contract on notice, the relevant Schedule shall
set out the terms of such termination. Save where specified to the contrary in an applicable
Schedule, any Services which are capable of continuing indefinitely shall be terminable by us
on reasonable notice.
14.2 This clause applies where we have agreed to provide Services at a discount in exchange for
you purchasing Services with an aggregate Price at or above an agreed amount. Where you
terminate the Contract and the aggregate Price paid or payable up to and including
termination is less than the agreed minimum amount, we shall be entitled to recalculate the
amount payable under the Contract without applying the discount and invoice you for any
resultant increase in the Price and you shall pay such amount in addition to all other amounts
payable on termination.
14.3 Without limiting any other rights or remedies accrued under the Contract, either party may
terminate the Contract by giving the other written notice with immediate effect if the other:
14.3.1 is in material breach of any of the terms of the Contract and, if the breach is capable
of remedy, fails to remedy the breach within 14 days of receipt of written notice giving
full particulars of the breach and of the steps required to remedy it;
14.3.2 ceases, or threatens to cease, to carry on business;
14.3.3 becomes or is declared insolvent or convenes a meeting of or makes or proposes to
make any arrangement or composition with its creditors;
14.3.4 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or
similar officer appointed over any of its assets; or
14.3.5 passes a resolution for its winding up (otherwise than for the purposes of a solvent
amalgamation or reconstruction) or a court makes an order to that effect, or (if the
other party is a partnership or unincorporated association) is dissolved or (if the other
party is a natural person) dies.
14.4 If we terminate the Contract under clause 14.3, the full amount of the Price will become
immediately due and payable.
14.5 Without limiting our other rights, if you or we exercise a right to terminate the Contract,
including under clause 7.5.2, we will be entitled (without further proof of loss) to recover from
you:
14.5.1 all sums you are liable to pay up to or arising out of termination of the Contract, which
are outstanding under the Contract as at the date of termination;
14.5.2 all Expenses incurred or agreed to be incurred. - DATA PROTECTION
15.1 Unless otherwise agreed between you and us, we will act as a Data Controller for the
purposes of the Data Protection Legislation in respect of any personal data we collect in
connection with an Advertising Campaign and Market Research, subject to the following
exceptions where we will act as a Data Processor:
15.1.1 where we agree (as part of the Services) to collect other personal data on your behalf;
for instance, if we agree to organise a competition for you.
15.2 Unless otherwise agreed between you and us, where clause 15.1 does not apply, we will act
as a Data Processor for the purposes of the Data Protection Legislation in connection with
the Services.
15.3 Where we act as a Data Controller in relation to any personal data that you provide to us in
connection with the Services:
15.3.1 you (a) warrant that you have given all necessary notices and have obtained all
necessary consents, or will otherwise ensure that you have a lawful basis under the
Data Protection Legislation, to transfer the data to us and any other person to whom
it is necessary for the data to be transferred for the purposes of providing the Services
(“Permitted Recipients”) and to enable us and the Permitted Recipients to process
such data (“Client Data”) (i) for the purposes of providing the Services in accordance
with the Contract and (ii) for the purposes of our legitimate interests in managing our
business and improving and promoting our services, including contacting you and
individuals connected with you by email or by phone with marketing information about
the services we provide and any changes to them (together, “Agreed Purposes”), and
(b) undertake to give full information to any data subject whose personal data may be
processed under the Contract of the nature of such processing; and
15.3.2 we undertake that we will (a) process the data only for the Agreed Purposes and in
accordance with the Contract; (b) not disclose or allow access to the Client Data to
anyone other than the Permitted Recipients, except as required or permitted by the
Data Protection Legislation; (c) ensure that we have in place appropriate technical
and organisational measures to protect against unauthorised or unlawful processing
of personal data and against accidental loss or destruction of, or damage to, personal
data; (d) not transfer any of the data outside the EEA unless (i) the transfer is to a
country approved by the European Commission as providing adequate protection; or
(ii) there are appropriate safeguards in place; or (iii) one of the derogations for specific
situations applies to the transfer, such that the transfer complies with the relevant
provisions of the Data Protection Legislation permitting such transfer; and (e) retain
the data for the duration of the Contract and for 6 years after its termination and,
subject thereto and at your written direction, delete or return the data and copies
thereof to you unless we are required by law to store the personal data for a longer
period.
15.4 Where we are to act as a Data Processor you will advise us as part of the Order (subject to
our approval) as to:
15.4.1 the categories of the data subjects in respect of whom we are to act as a Data
Processor,
15.4.2 the types of data that is to be collected,
15.4.3 the manner in which any consent required from individuals is to be given,
15.4.4 the scope and nature of the data processing required, and
15.4.5 the duration of the processing and the data storage period.
15.5 If we agree to act as a Data Processor in respect of any personal data relating to any individual
as part of the Services:
15.5.1 we will process the data we have agreed to process as Data Processor only to the
extent and in such a manner as is necessary for the provision of the Services and in
accordance with any instructions you have given us in writing as part of the Order,
unless we are otherwise required to do so by Applicable Laws, in which case we will
promptly notify you of this requirement before performing the processing required by
the Applicable Laws, unless the Applicable Laws prohibit us from so notifying you;
15.5.2 we will not disclose or provide the data or other information to any other person,
except those of our employees who need to have access to process the data or other
information and are subject to an appropriate obligation of confidentiality;
15.5.3 we will retain any such data securely and within our own possession and control whilst
processing the data and ensure that any use or storage of such personal data
complies with the requirements of the Data Protection Legislation;
15.5.4 ensure that we have in place appropriate technical and organisational measures to
ensure a level of security for the data which is appropriate to the risk involved in the
processing, in particular from accidental or unlawful destruction, loss, alteration,
unauthorised disclosure of, or access to the data, and notify you without undue delay
on becoming aware of a data breach with respect to any of the data;
15.5.5 we will not appoint a third-party as a sub-processor (or use a sub-processor which we
have previously appointed) in respect of the data, except as permitted by the Data
Protection Legislation;
15.5.6 we will, taking into account the nature of the processing, assist you by appropriate
technical and organisational measures, insofar as this is possible, for the fulfilment of
your obligation to respond to requests for exercising the data subject’s rights under
the Data Protection Legislation;
15.5.7 we will assist you in ensuring compliance with the obligations under the Data
Protection Legislation with respect to security, personal breach notifications, impact
assessments and consultation with supervisory authorities or regulators, taking into
account the nature of processing and the information available to the processor;
15.5.8 we will, at your written request, delete or return all the data to you after the end of the
provision of the Services relating to the processing, and delete existing copies unless
Applicable Laws require storage of the personal data;
15.5.9 we will make available to you all information necessary to demonstrate compliance
with the obligations laid down in this clause and allow for and contribute to audits,
including inspections, conducted by you or another auditor mandated by you;
15.5.10 we will ensure that no such data is transferred outside the European Economic Area,
except to a country with equivalent protection to the Data Protection Legislation or
under arrangements approved by the Information Commissioner. - CONFIDENTIAL INFORMATION
You and we will each keep the terms of the Contract (other than its existence or, in our case,
these Ts & Cs) and any information provided by the other as strictly confidential and not
disclose those terms or that information except where (a) that information is or, through no
fault of yours or ours (as appropriate), becomes publicly available; or (b) you or we (as
appropriate) are required by law or a public authority to disclose those terms or that
information. If (b) applies, you or we (as appropriate) will promptly notify the other of the
requirement in writing and continue to takes all reasonable steps required by the other to
avoid or minimise the disclosure and to ensure that those terms or that information continues
to be treated as confidential. - MISCELLANEOUS
17.1 A reference in these Ts & Cs to a statute or statutory provision includes that statute or
provision as amended, extended, re-enacted or consolidated from time to time, all statutory
instruments or orders made pursuant to it, and all legislation replacing it.
17.2 The headings in these Ts & Cs are for convenience only and do not affect their interpretation.
17.3 These Ts & Cs (together with the Order Form) constitute the entire agreement between you
and us, and supersede any previous agreement or understanding. All other terms, express or
implied by statute or otherwise, are excluded to the fullest extent permitted by law.
17.4 Except for any person for whose benefit an indemnity is given by you under clause 6.3 and
11.5 of the General Terms or under the provisions of the Schedules, a person which is not
expressly a party to any Contract will have no right under the Contract (Rights of Third Parties)
Act 1999 to enforce any term of the Contract, and the provisions of that Act are expressly
excluded from the Contract.
17.5 The Contract is personal to you and may not be assigned by you as a whole or in part.
17.6 We shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other
manner with any of our rights and obligations under the Contract without your prior written
consent (not to be unreasonably withheld or delayed), save that nothing in the foregoing shall
prevent us from such carrying out such dealings where: (a) such dealings are between us and
an Affiliate of ours, any corporation under common Control with us or any company where a
majority of its directors are directors of Mindfield; or (b) we are subcontracting our rights and
obligations under the Contract.
17.7 You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in
any other manner with any of your rights and obligations under the Contract without our prior
written consent (not to be unreasonably withheld or delayed).
17.8 If any provision of the Contract is held by any court or other competent authority to be void or
unenforceable (in whole or part), the other provisions of the contract and the remainder of the
affected provisions will continue to be valid.
17.9 The rights and remedies provided by the Contract are cumulative and not exclusive of any
rights or remedies otherwise provided by law.
17.10 Any failure by us to exercise or enforce any rights under the Contract will not be deemed to
be a waiver of that right, or operate to prevent the exercise or enforcement of it at any time or
times thereafter.
17.11 The Contract (including any non-contractual obligation related to it) will be governed by and
construed in all respects in accordance with the laws of England, and the English courts will
have exclusive jurisdiction in all matters relating to any Contract (whether of a contractual or
tortious nature or otherwise).
17.12 A notice required or permitted to be given by either you or us to the other under these Ts &
Cs must be in writing sent by first class post, by hand, by reputable courier or by email to:
Us:
For the attention of: the person who signed the Order for us;
Address: Mindfield Advertising and Marketing Limited, c/o Communicorp UK Limited, 7th Floor,
XYZ Building, 2 Hardman Boulevard, Spinningfields, Manchester. M3 3AQ;
Email: the email address on the Order.
You:
For the attention of: the person who signed the Order for you;
Address: your registered office;
Email: the email address on the Order.
or any other address or email address which one party has notified the other pursuant to this
provision.
17.13 A notice is deemed delivered two Business Days after being sent in accordance with this clause
to the correct address, at the time of delivery when delivered by hand or reputable courier, or
the next Business Day after sending to the correct email address (provided no delivery failure
notification is received by the sender).
SCHEDULE A: CREATIVE SERVICES
A1. GENERAL
A1.1. This Schedule shall apply where the Services we provide are, Creative Services (and for the
avoidance of doubt applies in addition to our General Terms, as set out in clause 2.3 of the
General Terms). Save where expressly specified, it shall not apply to any other Services.
A2. OUR SERVICES
A2.1. We will agree with you in advance a schedule of the Creative Services to be provided. This
may be on a one-off basis or on a monthly retainer basis.
A2.2. Where we provide these Creative Services on a retainer basis our charges will be for a set
number of hours per month. In any given month the hours actually worked may be different to
the set number of hours agreed, any variance in hours, whether under or over, in any given
month will be carried forward for use in the following month on a cumulative basis. At the end
of any given 12 month period or on termination of the contract, the number of hours, either
under or over the cumulative set number of hours for the same period will be charged or
rebated at the hourly rate. The hourly rate being the retainer fee divided by the retainer hours.
A3. THE COPY
A3.1. Where we agree, as part of the Creative Services, to produce Copy or part of any Copy, you
must:
a. provide us in good time with all necessary information and all material necessary for us
to be able to produce the Copy requested, in a form that is of high quality and in a
readily accessible format;
b. provide us with that material within a reasonable period of time to permit us to produce
the Copy to a high standard, and at least three clear Business Days before the first date
upon which an Advertisement is to be broadcast; and
c. co-operate with and assist us in producing the Copy, including responding promptly to
any requests and queries we make.
A3.2. Subject to any specific instructions you may give us (which we will accept if it is reasonably
practical to do so), the exact nature, appearance, sound and content of the Copy we produce
will be subject to our discretion.
A3.3. Subject to you complying with paragraph A3.1, we will exercise reasonable care and skill in
producing the Copy and will use reasonable endeavours to satisfy your requirements in respect
of the Copy to be produced.
A3.4. Where you agree to produce the Copy, you must:
a. supply us with the Copy at least three clear Business Days before the first date upon
which an Advertisement is to be broadcast;
b. where the Copy is in audio, provide the Copy in 16 bit 44k Mastered PCM wav format;
c. where the Copy is in any other medium, provide the Copy in a suitable high quality and
readily accessible format; and
d. ensure that you provide all Copy, whatever its form, in a finished state so that it can be
broadcast or utilised without modification, amendment or alteration.
A3.5. Any changes to be made to the Advertisement or the Copy for any reason must be agreed
between you and us.
A4. INTELLECTUAL PROPERTY RIGHTS
A4.1. Where you provide the Copy, you will retain all copyright and other intellectual property rights
in respect of the Copy, but you grant us an irrevocable, non-exclusive, royalty-free licence to
use the Copy.
A4.2. Where we provide the Copy for the Campaign, we or our licensors will own all copyright and
other intellectual property rights in respect of the Campaign and the Copy, subject only to your
right to use the Copy for the purposes of the Campaign.
A4.3. Where we provide Copy that includes rights in musical works, literary works, sound recordings
or any other rights in music or speech recordings (“Music”) under licence from a third party,
you warrant that you will not use the Music or any part of it other than for the Campaign in
accordance with these Ts & Cs.
A4.4. You shall indemnify us (together with our directors, employees or authorised agents) against
all liabilities, costs, expenses, damages and losses (including but not limited to any direct,
indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and
legal costs (calculated on a full indemnity basis) and all other reasonable professional costs
and expenses) suffered or incurred by us arising out of or in connection with any breach of the
warranty in paragraph A4.3 of this Schedule, including any claim made against us for actual or
alleged infringement of a third party’s intellectual property rights arising out of your use of Music
in breach of the warranty in paragraph A4.3 of this Schedule.
A4.5. Where we use the Copy you provide for the Campaign, but make additions or alterations to it
by agreement with you, we will own all copyright and other intellectual property rights in respect
of those additions or alterations, to the extent they are severable from the Copy you provide.
A5. PAYMENT TERMS AND COST ASSUMPTIONS
A5.1. You will pay to us the Price including Expenses, provided such Expenses have been approved in
advance by you or is pursuant to a budget approved in advance by you.
A5.2. Value Added Tax shall be added to all sums due at the applicable rate.
A5.3. All of our invoices are due and payable by you to us by the 30th day following the last day of
the month.
A5.4. All sums paid late shall be subject to interest at the rate of 3% above the base lending rate of
The Royal Bank of Scotland Plc from time to time, per month from the date payment fell due
until payment is made to us. You agree to waive all rights of set-off or retention.
A5.5. Where we are unable to put in provide credit in respect of sums owed by you to us we may
require payment in advance from you.
A6. TERMINATION
A6.1. Either party may terminate the Contract by giving the other 28 days’ written notice.
SCHEDULE B: MEDIA SERVICES
B1. GENERAL
B1.1. This Schedule shall apply where the Services we provide are, or are connected to, media
buying services (and for the avoidance of doubt applies in addition to our General Terms, as
set out in clause 2.3 of the General Terms). Save where expressly specified, it shall not apply
to any other Services.
B2. OUR SERVICES
B2.1 We shall supply Media Services to you. In doing so we shall act with appropriate
media suppliers (“Media Suppliers”) as principal and not as your agent. This means
that, in particular, we have full authority to agree terms with each Media Supplier and
to make bookings.
B2.2. Notwithstanding the above, we shall act as an agent for you in respect of buying time
and space from the media in relation to sponsorship services and shall place orders
with media or rights owners in your name and on your behalf. Where the parties
agree that we are responsible for payment of media owners’ invoices then we shall
act as principal and not as your agent solely for the payment of such invoices.
B2.3. We may subcontract to other parties but at all times we will remain responsible for the
Media Services we have agreed to supply to you. For the avoidance of doubt, we shall
not be responsible for the acts or omissions of any Media Suppliers.
B2.4 We will agree with you in advance a budget (“Media Budget”) covering all expenditure
(“Media Expenditure”) in providing the Media Services to you and when a Media
Budget has been agreed we will provide an Order requiring authorisation in writing
prior to issuing any orders to Media Suppliers.
B3. MEDIA BOOKING CANCELLATIONS
B3.1. Where we have made bookings with Media Suppliers it is often not possible to cancel or amend
those bookings. We therefore can only accept requests from you to cancel or amend any such
bookings where we are in turn able to cancel or amend that booking with the Media Supplier.
B3.2. Where a cancellation or amendment can be made you will reimburse us for any costs incurred
in so doing and pay to us a cancellation/amendment fee at our then current rates.
B4. PAYMENT TERMS AND COST ASSUMPTIONS
B4.1. You will pay to us all costs and charges, including our fees (“Fees”) and the Media Expenditure
(collectively referred to as the “Charges”) in relation to the provision of Media Services to you.
B4.2. These will Expenses provided each such expenditure has been approved in advance by you or is
pursuant to a budget approved in advance by you.
B4.3. Value Added Tax shall be added to all sums due at the applicable rate.
B4.4. All of our invoices are due and payable by you to us by the 30th day following the last day of
the month in which activity runs.
B4.5. We shall receive standard media commission (“Media Commission”), normally 15%, of media
expenditure from Media Suppliers.
B4.6. Where 15% media commission is not given by a Media Supplier, we shall gross up the cost to
reflect the equivalent of 15% prior to calculating our fee.
B4.7. Where we plan and/or buy digital media as part of the Media Services then Fees will be agreed
on a project basis in advance of any planning.
B4.8. Additional fees shall be payable by you to us in respect of any adserving and tracking services
at our current rates from time to time. For the avoidance of doubt, this does not include any
online element of TV contractor Sponsorship and Promotions packages, for which all
commissions and rebates shall match those for TV.
B4.9. We will apply the standard Advertising Standards Board of Finance (ASBOF) levy of 0.1% to
the Media Expenditure charged on our invoices. This is a voluntary levy which we pass on to
ASBOF to fund the Advertising Standards Authority’s work.
B4.10. All sums paid late shall be subject to interest at the rate of 3% above the base lending rate of
The Royal Bank of Scotland Plc from time to time, per month from the date payment fell due
until payment is made to us. You agree to waive all rights of set-off or retention.
B4.11. Where we are unable to put in provide credit in respect of sums owed by you to us we may
require payment in advance from you.
B5. TERMINATION
B5.1. Either party may terminate the Contract by giving the other 28 days’ written notice.
B5.2. If you give notice under paragraph B5.1 of this Schedule to terminate:
a. All bookings with Media Suppliers that cannot be cancelled will become immediately
due for payment in full, and
b. All bookings with Media Suppliers that have been placed but can be cancelled will be
subject to a charge of 50% of the Media Commission, to reflect the work already
undertaken, and
c. you shall pay any unpaid Expenses.
SCHEDULE C: MARKET RESEARCH
C1. General
C1.1. This Schedule shall apply where the Services we provide are, or are connected to, market research (and for the avoidance of doubt applies in addition to our General Terms, as set out in clause 2.3 of the General Terms). Save where expressly specified, it shall not apply to any other Services.
C2. YOUR OBLIGATIONS
C2.1. You will promptly inform us if you consider that any Deliverables submitted to you by us for approval are false or misleading (for example information about the product or service in respect of which the market research is undertaken) or in any way contrary to law or applicable regulation.
C2.2. You will, at your own expense, provide all relevant data or other information, documents or other materials related to the Project and keep us informed of any material change in circumstances. You warrant and we shall be entitled to regard any information provided by you as complete and accurate unless you expressly state when providing it in what respect it is not complete and accurate. You will supply at your own expense all agreed documents or other Client Materials, and all necessary data or other information relating to the Project (and ensure the accuracy of the same), within sufficient time to enable us to carry out the Project in accordance with the Contract.
C2.3. Unless we are legally or contractually obligated to retain any of the following, we may keep key documents (including, without limitation, electronic copies of the sample details, Deliverables and debrief documentation) for up to three years from the date of the Project debrief presentation or documentation (“Project Completion Date”) after which they will be destroyed securely. Where used, questionnaires will be retained for up to three years as required by the Market Research Society before being destroyed. All audio/video recordings and any paper, projects and materials relating to the Project will be destroyed securely six months after the Project Completion Date.
C2.4. All documents and electronic media including questionnaires, card, tapes, disks etc. on which the data is recorded is and shall remain our property.
C3. WARRANTIES
C3.1. We warrant that we shall use reasonable skill and care in providing the Services and will carry out the Services in accordance with the accepted principles and rules of the market and social research profession.
C3.2. We do not guarantee that the Services and the Deliverables will be able to be used by you in a specific commercial way.
C3.3. Where we agree to supply a Deliverable to you in electronic format, both parties shall comply with the agreed security specifications.
C4. SCOPE AND METHODOLOGY
C4.1. The scope and methodology for the market and/or social research we undertake as part of the Services will be agreed by the parties and stated on the Order Form.
C4.2. You shall not acquire any rights in the Deliverables under paragraph C7 until we have received payment in full for the relevant Services, in accordance with clause 7 of the General Terms, of all sums due to it in respect of all and any invoices issued to you and no part of the Project will be disclosed to you until payment of our initial invoice has been received by us (in cleared funds).
C5 PAYMENT TERMS AND COST ASSUMPTIONS
C5.1. Subject to paragraph C5.2 of this Schedule, you will pay 50% of the Price and all anticipated Expenses prior to us commencing provision of the Services. You will pay the remainder of the Price on completion of the Project.
C5.2. If we agree that a Project is to be carried out in stages, we will be entitled to invoice for each stage. Where interim reports are produced, we will invoice on delivery of such report.
C5.3. The Price is estimated according to specific Project requirements, the agreed timescale, and any assumptions detailed in the proposal. If the timescale, Project objectives, requirements, research approach, or the assumptions on which the quote is based are changed in any way by you, we will have the right to review the date for completion of the Project and the Price, and charge an additional sum for any additional work that has resulted from those changes. This includes all amendments made to research quotas, and analysis parameters (e.g. profiling of research participants) after the Contract has commenced in accordance with clause 10 of the General Terms.
C6. TERMINATION
C6.1. Either party may terminate the Contract by giving the other 28 days’ written notice.
C6.2. If you give notice under paragraph B6.1 of this Schedule to terminate:
- we shall be entitled to retain 50% of the Price (or if for any reason you have not paid 50% of the Price, you shall pay 50% of the Price immediately after giving notice under paragraph B6.1 of this Schedule);
- if our costs on termination (in our reasonable assessment) exceed 50% of the Price, you shall also pay the amount by which our costs exceed 50% of the Price; and
- you shall pay any unpaid Expenses.
C7. INTELLECTUAL PROPERTY RIGHTS
C7.1. The copyright and all other Intellectual Property Rights whatsoever (whether vested, contingent or future) in any work produced by us for you in connection with the Project including (without limitation) the Deliverables, debrief documentation and any other information and materials (“Project Results”) shall belong to us absolutely at all times, but we hereby grant to you (subject to payment in full of the Price) a non-exclusive, non-transferable, irrevocable and royalty free licence in respect of the Intellectual Property Rights in relation to use the Project Results for internal purposes of your business.
C7.2. The findings from our research and contained within the Project may only be published, used or quoted elsewhere, with our prior written approval and provided that the findings and work are attributed to us. This is in accordance with the MRS Code of Conduct, whereby we must authorise the final proof of such material before it can be used by you. We reserve the right to withhold approval until such time as the requirements of the MRS Code of Conduct have been met in full.