Terms of Business
- Invoicing and payment
- Retainer fees; limitations on refunds, renewals and cancellation fees
- Limited liability and indemnity
- Creative IP
- Approvals, authority and amendments
- Data protection
- Third party content and services
- Failure to perform
1.1 The “Client”, the company named in any MARKETING SERVICES AGREEMENT, or any other relevant Statement Of Work including; schedules, quotes, estimates or invoices (the “SOW”) to which these Terms & Conditions of Business apply appoints enjoy-sales ltd (the “Agency”), in an exclusive capacity, to carry out, and the Agency agrees to provide, the services (“Services”) outlined in the SOW to the Client during the Term (as defined in the SOW) in accordance with these Terms & Conditions.
1.2 Any changes or additions to the Services provided by the Agency must be agreed in writing between the Agency and the Client.
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 in line with the agreed contractual obligations. 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.
1.5 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.
1.6 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.
1.7 The Agency may outsource or sub-contract its performance of the Services or part thereof.
1.8 Activation of Services. Any services outlined in a SOW, including a Marketing Service Agreement, will becomes legally binding upon either its return via email, by the Client to the Agency, or a signed copy being mailed to the Agency, or upon the commencement of any of the services outlined within it requested by the Client.
2.1 Integrated marketing support (ims): strategy, planning, consultancy, account management & project delivery
2.1.1 All IMS services will be undertaken, supplied and billed by the agency or associated companies and partners
2.1.2 The agency will, for the agreed fees, provide and implement an Integrated Marketing Support Plan to cover the length of the project, campaign or retained period.
2.1.3 The agency works to a value-based business model and will provide the services agreed for the fees, and budgets, agreed.
2.1.4 The SOW will confirm the specific provision of Services to the Client.
2.1.5 Terms of business for specific and specialist value-based project and campaign deliverables are outlined from 2.2 below.
2.2 Website, funnel & cx development and marketing automation (“web services”)
2.2.1 Copyright. The client retains the right to data, files and graphics provided by the client. The client warrants that they hold all rights, permissions and copyright to all information provided and fully indemnify the agency against any and all claims, costs or actions regarding the use of information, files and graphics supplied by the client for the agency to use in respect of contracted web development services provided to the client.
2.2.3 Law. It is the client’s responsibility to comply with the laws, taxes, and tariffs relating to websites and the agency does not offer legal advice in these matters.
2.2.4 Proprietary code. Should the agency write custom code for a website or application, develop automated marketing tools, landing pages or micro sites, and data capture capabilities as required by the client, then the copyright for such code shall remain with the agency. In such cases, during the working relationship the agency shall authorise the client to make full usage of such code within the confines of their own business only, unless agreed separately in writing.
2.2.5 The Agency will own the right to the IP of all client online websites, platforms, CX funnels, marketing automation or applications (including modifications/bespoke coding made to open source solutions).
2.3 Creative services
Where we the agency carry out design and creative work all intellectual property rights will remain with the agency until all work has been paid for in full.
2.4 Integrated media campaigns (IMC)
Where the Client appoints the Agency to supply an integrated media campaign (IMC) across paid media, both digital and traditional, the following terms of business shall apply;2.4.1 In implementing the integrated media campaign (IMC) the agency shall develop a plan intended to improve the visibility of the client’s business profile with the intent to deliver the results required.
2.4.2 The client acknowledges that the IMC will require the client to enable the agency to implement paid activity, using the agency’s own strategy, proprietary technology, third party software, third party suppliers, sales funnels and marketing automation tools on the clients behalf across the agreed media networks in order to influence the desired outcome; brand awareness, increased traffic, increased footfall, increased bookings, generated leads, customer sales and other agreed metrics agreed prior to the commencement of the campaign.
2.4.3 The client acknowledges that the IMC will require the client to enable the agency to have the authority to adjust spend across the campaign allocation in order to influence the desired outcome; brand awareness, increased traffic, increased footfall, increased bookings, generated leads, customer sales and other agreed metrics agreed prior to the commencement of the campaign.
2.4.4 The client acknowledges that each IMC quoted, booked, and billed for, includes a booking fee of seven percent (7%) of the total quote or SOW provided.
2.4.5 The client acknowledges that each IMC quoted, booked, and billed for, includes a strategy, creative, copy and funnel development set up fee of twelve percent (12%) of the total quote or SOW provided, or £2,500, whichever is higher.
2.4.6 The client acknowledges that each IMC quoted, booked, and billed for, includes fees, relating to the daily or weekly performance management, and access to the aforementioned software and tools in 2.4.2, of five percent (5%) of the total quote or SOW provided.
2.4.7 The client acknowledges, due to the intricacies involved, that each IMC quoted, booked, and billed for, includes a sensitivity of up to two percent (2%), in relation to overspend and underspend, of the total media campaign value under management.
2.4.8 For any campaign involving the management and hosting of excessive data totals, a monthly software and data management fee of £2,500 shall apply for the duration of the campaign.The Client will be informed of this additional charge prior to campaign commencement.
2.4.9 Fees are included in all proposals provided, and subsequent CPL/CPA reporting, and are taken from monies under management. IMC Fees are be billed in advance and payable by return.
2.4.10 An alternative fee based, or cost per result performance model, is available for discussion upon request.
2.4.11 The Client shall be responsible for providing the agency with the necessary login details to relevant digital and social channels for campaign implementation, grant requested user access and also for providing copy and/or information necessary for the agency to ensure campaigns are fully effective.
2.4.12 The client retains full responsibility for their digital and social media channels at all times.
2.5 SME Facebook lead generation packages (FLP)
2.5.1 A non-contracted Small Business Local Marketing Facebook Lead Generation Package is available for local and regional Facebook advertising, at £985 per package, with a minimum purchase of 4 (four) packages.
2.5.2. The Small Business Facebook Lead Generation Package includes: Facebook media spend of fifty percent (50%); costs of twenty-four percent (25%) for booking, setup, creative, artwork and copy; lead generation funnel software and data capture costs of ten percent (10%); and a fifteen percent (15%) performance management fee.
2.6 Paid search marketing services (PSMS)
Where the Client appoints the Agency to supply paid search marketing services the following terms of business shall apply.
2.6.1 The agency will manage, monitor, track and measure search engine marketing programs and promote the marketing of the Client’s products and/or services (“Products”) on the Website(s) (and all successor or replacement sites thereto);
2.6.2 The agency will manage the relationships with, and payments to, the owners, operators and/or administrators of the relevant search engines or directories unless agreed otherwise.
2.6.3 The agency will manage bid price, listing terms, monthly spend, adding and deleting listings, creating new listings and changing bid amounts.
2.6.4 The agency will provide, monitor and maintain the necessary technology applications required to link the Website(s) to Search Partners; and
2.6.5 The agency will track and report certain metrics including number of clicks, sales conversion data and ROI measurements and, if applicable to the Agency’s fees, track and report the nature and volume of all relevant actions.
2.6.6 The client acknowledges that each campaign quoted, booked, and billed for, includes fees, relating to the strategy, set up, relevant landing page build & hosting, marketing automation software and weekly performance management, of twenty-one percent (21%) of the total quote or SOW provided.
2.6.7 Minimum monthly fees of £2,500 applies to 2.6.6.
2.7 CX Email remarketing services (CXER)
Where the Client appoints the Agency to supply email remarketing services the following terms of business shall apply;
2.7.1 The client acknowledges that the email remarketing services will require the client to enable the agency to implement email marketing activity, marketing automation, sales funnel development, data tagging and scoring capabilities using the agency’s own strategies, technology, third party software, data capture and marketing automation tools on the clients behalf in order to influence the desired outcome; re-engaged existing leads, increased footfall or visits, increased phone calls, increased bookings, generated referral leads, customer sales and other agreed metrics.
2.7.2 The client acknowledges that each CX email remarketing campaign quoted, and billed for, relates to the performance management of the project, fees to cover strategy, project management, artwork, copy and email marketing digital and that the agency will utilise the budget across all areas of the email remarketing portfolio to performance manage the desired outcome outlined in 2.7.1.
2.7.3 The client acknowledges that each remarketing campaign quoted, booked, and billed for, includes fees relating to the access to the above-mentioned software and tools in 2.6.1.
2.7.4 The client acknowledges that each email remarketing campaign quoted, booked, and billed for, excludes 3rd party costs.
3.1 The Client agrees to pay Fees in accordance with the Terms of Payment.
3.2 The Client agrees to pay the Agency any and all Fees and charges relating to work undertaken as invoiced unless issue is raised as per point 4.5 below.
3.3 Monthly Retainer Remuneration, project-based campaigns or assignments shall only be reviewed in line with the relevant Marketing Services Agreement (MSA), or other SOW. Any agreed review shall be confirmed in writing by both parties. A monthly retainer based MSA, unless renewed, converts to a rolling contract with 6-months’ notice from either party.
3.4 Unless agreed otherwise, the agency works to a value-based Fees model, rather than renumeration based on projected time, and provides quotes, estimates and invoicing in line with this model.
3.5 Where the Agency’s remuneration is fee based on the projected time to be incurred in providing the Services the Agency reserves the right to reconcile and adjust the Fees to reflect the actual time spent.
3.6 Where the Agency’s remuneration is fee based on the projected time to be incurred in providing the Services the Agency reserves the right to bill retrospectively for any additional hours supplied up to a maximum period of twenty-four (24) months.
4. Invoicing and payment
4.1 The agency will invoice the Client at the Invoice Interval set out on the SOW, order form, quotation, schedule or agreement via digital communication.
4.2 Where the Client is subject to a Credit Limit, the Client will make payment to reduce the limit each and every time the value of the unpaid Fees for the Services reaches the Credit Limit.
4.3 If the Client fails to make any payment on the due date then the agency without prejudice to any right which the agency may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 4% and the base rate of Bank of England.
4.4 If the Client fails to make any payment on the due date then the agency may withhold or suspend future or current performance of the Services.
4.5 Any disputes or issues in relation to invoicing, either in relation to delivery, performance, media spend or payment, must be raised within fourteen (14) working days from the date of the invoice or the monthly marketing campaign completion date, whichever is the latter. No recourse is available after this period.
5. Retainer fees; limitations on refunds, renewals and cancellation fees
5.1 If the Client and the Agency are unable to agree remuneration in advance of the due date for the annual review of retainer fees the remuneration previously applied shall continue to be payable until such time as agreement is reached, at which point any necessary balancing payment shall be made, or until the Agreement appointment is terminated.
5.2 The annual retainer review and the agreement thereof will be in line with the latest terms of business. Any elements of the previous SOW, or previous Marketing Services Agreement, not aligned with the terms of business will be deemed null and void.
5.3 The Agency will invoice the retainer fees monthly, on the first day of each month, and payment terms are 30 days from the date of each invoice. If the Client fails to pay any invoice within 10 days of the due date, the Agency shall have the right to suspend the Services.
5.4 In the event that the Client requires any additional services outside of the original agreement, the parties agree to negotiate in good faith with respect to the terms, conditions, and compensation for those additional services, which will then be outlined in an additional SOW.
5.5 Travel and associated expenses and any other out-of-pocket expenses incurred by the Agency or its employees at the Client’s prior written request or incurred outside the scope of the Agency’s normal duties may be charged to the Client at cost.
5.6 The existence of a query on an individual item in an account will not affect the due date of payment for the balance of the account.
5.7 Absence of any Client purchase order number or other job number will not constitute a valid reason for non-payment.
5.8 All fees, costs and all other amounts to be invoiced to the Client are exclusive of Value Added Tax or other local sales or other taxes or duties, which will be added to all invoices at the prevailing rate if required by law.
6. Limited liability and indemnity
6.1 The Client shall indemnify the agency from any loss and hold harmless the Agency (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable legal fees and all related costs and expenses) incurred by Agency as a result of any claim, proceedings, judgment, or adjudication against the Agency related to or arising from;
6.1.1 any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Client to the Agency (the “the Client Content”), or
6.1.2 a claim that the Agency’s use of the Client Content infringes the intellectual property rights of a third party.
6.2 To qualify for such defence and payment, the Agency must:
6.2.1 give the Client prompt written notice of a claim; and
6.2.2 allow the Client to control, and fully cooperate with the Client in, the defence and all related negotiations.
6.3 In no event shall the agency be liable to the client for any indirect, special, exemplary or consequential damages, including any implied warranty or merchantability or fitness for a particular purpose and in particular any claim of the failure of any software contained on rented or owned servers of the client, or the agency, or implied warranties arising from course or dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this agreement, loss of data or any performance under this agreement, even if such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy provided herein.
6.4 There shall be no refunds.
6.5 The agency makes no warranty of any kind, whether express of implied with regard to any third-party products, third party content or any software, equipment, or hardware obtained from third parties
6.6 The agency makes no warranty of any kind, whether expressed or implied with regard to any performance, or underperformance, of the Services provided in relation to web traffic, footfall, cost per lead (CPL), cost per acquisition (CPA) or any other metric, result or outcome – financial or otherwise.
6.7 Nothing in these Conditions shall limit or exclude the agency’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors.
6.8 Subject to law, the agency shall not under any circumstances whatsoever be liable for:
6.8.1 loss of profits; or
6.8.2 loss of business; or
6.8.3 depletion of goodwill and/or similar losses; or
6.8.4 loss of anticipated savings; or
6.8.5 loss of goods; or
6.8.6 loss of contract; or
6.8.7 loss of use; or
6.8.8 loss or corruption of data or information; or
6.8.9 Underperformance, or the inability to deliver any desired outcome, through the client’s purchase of the Services; and
6.8.10 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
6.9 The agency’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to a figure no greater than the Fees paid, excluding third party costs, for the relevant Services in the previous two (2) months, (or if two (2) months have not elapsed, would be payable in two (2) months).
6.10 The agency shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing any obligations.
6.11 The agency shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any failure to perform any obligations if the failure was due to any cause beyond the agency’s reasonable control.
6.12 If the agency’s performance of any of its obligations under the agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
6.12.1 The agency shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the agency’s performance of any of its obligations;
6.12.2 The agency shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the agency’s failure to perform any of its obligations under the Agreement as set out in clauses 6.12 & 6.14; and
6.13 the Client shall reimburse the agency on written demand for any costs or losses sustained or incurred by the agency arising directly or indirectly from the Client Default.
6.14 In respect of any instructions or advice received orally or in writing by the agency, the agency shall have no liability to Client for any misunderstanding or misrepresentation which may arise in relation thereto whether on the part of the agency or the Client.
7. Creative IP
Where we the agency carry out design and creative work all intellectual property rights will remain with the agency until all work has been paid for in full.
8. Approvals, authority and amendments
8.1 Your approval of copy, layouts, creative and artwork will be sufficient authority for us to purchase agreed production materials and prepare proofs, and your approval of proofs will be sufficient authority for us to publish.
8.2 Your approval of schedules and estimates will be sufficient authority for us to make reservations and contracts for space, time and other facilities.
8.3 In the event of any cancellation or amendment you may request us to do to work in progress; we will take all possible steps to comply, provided that we can do so within our contractual obligations to media and suppliers. In the event that this is not possible you will warrant that you will reimburse us for any charges or expenses to which we are committed and also to pay our fees for such work in progress.
The Client makes the following representations and warranties for the benefit of the Agency:
9.1 The Client represents to the Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Agency are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Agency and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
9.2 The Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to the Agency for inclusion on the website above are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend the Agency and its subcontractors from any liability or suit arising from the use of such elements.
10.1 The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information.
10.2 Proprietary or Confidential Information shall not include any information which:
10.2.1 is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party;
10.2.2 was previously known to the receiving party or rightly received by the receiving party from a third party;
10.2.3 is independently developed by the receiving party;
10.2.4 is subject to disclosure under court order or other lawful process.
10.3 The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in the SOW.
10.4 Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief.
10.5 Notwithstanding termination or expiration of this Agreement, the Agency and the Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
11. Data protection
11.1 All information collected from or for the client will be held subject to the confidentiality terms of this agreement and in accordance with data protection laws. Such information will only be held by the Agency during the term of this contract.
12. Third party content and services
12.1 We may also provide you with access to certain services, features or functionality offered by a third party in connection with the Services. Use of any such services, features or functionality will be subject to separate terms of service between you and such third party, and not these Terms of Business. The third-party provider, and not the agency, will be solely responsible for providing you with such services, features or functionality.
13. Failure to perform
13.1 Neither party will be liable for any delay or for failure to perform its obligations if that delay or failure is caused by circumstances beyond the control of the party including but not limited to, acts of God, industrial dispute, civil disturbance, strikes (other than strikes by that party’s employees or its sub-contractor’s employees) or lockouts or impossibility of obtaining source material.
14.1 These terms of business shall be subject to and interpreted in accordance with the law of England and Wales whose courts of England and Wales shall have non-exclusive jurisdiction.
15.1 In the event of any dispute arising, the parties will attempt to settle it by negotiation. To this end, they shall use their respective best endeavours to consult or negotiate with each other, in good faith and, recognising their mutual interests attempt to reach a just and equitable settlement satisfactory to both parties. Negotiations shall be conducted between the respective senior executives of the parties who gave authority to settle disputes.