Terms & Conditions

Audience Store
Terms and Conditions

1.              Definitions and Interpretation

The following words and phrases shall have the following meanings (except where the context otherwise requires):

Advertising means all the Client’s advertising in relation to which Audience Store performs Services for the Client under this Agreement;

Agreement means these Terms and any SOW(s) and Media Plan(s) and Insertion Order(s);

Applicable Laws means the law of the United Kingdom or of a part of the United Kingdom;

Audience Store means Audience Store Limited, a company registered in England and Wales with registration number 08513438 whose address is 325 Euston Road, ,  London. NW1 3AD;

Audience Store Materials means those materials specifically created by Audience Store for the Client for the purposes of this Agreement by officers, employees or contractors of Audience Store;

Audience Store Proprietary Materials means content, materials, information, software, methodology, know-how and processes in existence prior to the date on which it is intended to use them in connection with performance under this Agreement and in relation to which the Intellectual Property Rights are owned by Audience Store;

Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

Client means the company which purchases the Services and Deliverables from Audience Store as specified in the Media Plan and / or Insertion Order and/or the SOW;

Client Default has the meaning set out in clause 4.9;

Client Materials means any data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to Audience Store by the Client;

Client Personal Data any Personal Data which Audience Store processes in connection with this Agreement, in the capacity of a Processor on behalf of the Client;

Commencement Date means the date specified in clause 3;

Data Protection Legislation means:

(a)    To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;

(b)    To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Audience Store is subject, which relates to the protection of personal data.

Deliverables means the advertising, creative and other materials which are to be provided by Audience Store as specified in the SOW, including any Audience Store Materials, Audience Store Proprietary Materials, and Third Party Materials where applicable;

EU GDPR means the General Data Protection Regulation ((EU) 2016/679);

Expenses means any additional cost incurred by Audience Store including but not limited to travel as detailed in clauses 5.3 and 7.15;

Fees means the fees for the Services and Deliverables as detailed in the SOW and clause 7;

Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation any law or any action taken by a government or public authority, imposing an export or import restriction, quota or prohibition,  epidemic, pandemic, act of God, drought, earthquake, collapse of buildings, explosion or accident, fire, flood, industrial action or organised protests by third parties, natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, interruption or failure of utility service, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations;

Guarantee Minimum Supply means an agreed minimum total amount in any 12-month period of gross expenditure on advertisement space to be paid by the Client via Audience Store to a Media Supplier or the agreed minimum total amount in any 12-month period of advertisement space to be purchased by the Client via Audience Store from a media supplier;

Insertion Order means one or more documents agreed and signed by the Parties from time to time detailing the relevant campaign information and costs;

Intellectual Property Rights means any patents, rights to inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright neighbouring and related rights,  design rights; database rights, rights in computer software, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets); 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; and any and all other intellectual or proprietary 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;

Media Costs means all of the costs of Advertising from third parties including but not limited to ad serving; bid management; brand tracking; and/ or analytics management required to assist in the delivery and optimisation of the Advertising;

Media Plan means one or more documents approved and signed by the Client from time to time detailing proposed media purchases and costs;

Media Supplier means any third party engaged by Audience Store to provide advertisement space, reporting or otherwise in connection with the Services or Deliverables;

Parties means the Client and Audience Store;

Request for Quotation (RfQ) the Client’s request for Audience Store to provide a quotation for the supply of Services and Deliverables, made either in writing, over the telephone or however else communicated by the Client to Audience Store;

Residuals means information in intangible form, which may be retained by persons performing the Services, including, without limitation, ideas, concepts, know-how, and techniques which do not contain any Client Confidential Information;

Services means those services Audience Store will perform for the Client as agreed between the parties or specified in the SOW, Insertion Order and/or Media Plan and these Terms (as applicable) including but not limited to media planning and buying, search engine optimisation, pay per click advertising, creative, performance display including connected TV, strategic marketing, user experience and CRM management, brand services and positioning, data led optimisation of the evolving interconnected global media landscape;

SOW means the statement of work which comprise one or more documents agreed and signed by the Parties from time to time detailing the Services and Deliverables to be provided by Audience Store to the Client, which may take the form of an Insertion Order or Media Plan;

Term means the period from the Commencement Date until the termination of this Agreement;

Terms means these terms and conditions as amended from time to time in accordance with clause 18.1;

Territory means the United Kingdom, unless expressly specified otherwise in the applicable SOW or Media Plan or Insertion Order;

Third Party Materials means any work or materials which are authored, created or performed by a third party and either commissioned by Audience Store for, or used in relation to, the Services and/or incorporated into the Deliverables;

UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

1.1            The SOW and Media Plan(s) and Insertion Order(s), together with these Terms form part of the Agreement and any reference to the Agreement includes the SOW, the Media Plan(s), the Insertion Order(s) and these Terms.

1.2            References to any statute or statutory provision include a reference to that statue or statutory provision as from time to time amended, extended or re-enacted and to any subordinate legislation made from time to time under that provision.

1.3            Where any provision contained in an SOW or Media Plan or Insertion Order conflicts with any provision of the Terms, the following order of precedence shall apply: the Insertion Order, the Media Plan, the SOW, the Terms unless agreed otherwise in writing between the parties from time to time.

1.4            Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.5            A reference to writing or written includes email but not fax.

 

2.              Agreement to act as Media Advertising agency

2.1            The Client appoints Audience Store to carry out and Audience Store agrees to provide the Services and Deliverables to the Client in the Territory during the Term in accordance with this Agreement.

2.2            These terms apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

 

3.              Basis of Contract and Term of appointment

3.1            From time to time, the Client may submit an RfQ to Audience Store in respect of the potential procurement Services and Deliverables subject to these Terms. The Client shall ensure that it provides Audience Store with as much information as Audience Store reasonably requests in order to respond to the RfQ.

3.2            Audience Store shall either:

3.2.1            inform the Client that it declines to provide the requested Services and Deliverables; or

3.2.2            provide a quotation to the Client in response to the Client’s RfQ for the provision of the Services and Deliverables in accordance with the details set out in the RfQ.

3.3            The Parties shall discuss and agree any provided quotation and:

3.3.1            Audience Store shall provide the Client with a Media Plan and / or Insertion Order (subject to clause 5.3) and / or SOW;

3.3.2            Audience Store and the Client shall discuss and agree the Media Plan and / or Insertion Order and / or SOW;

3.3.3            both parties shall sign the Media Plan and / or Insertion Order and / or SOW when the same (as applicable) are agreed.

3.4            This Agreement shall commence on the date specified in the Media Plan and / or Insertion Order and / or SOW (as applicable) or on the date that Audience Store commences provision of the Services whichever is the sooner and continue until terminated by either party under clause 16, or by either party giving to the other not less than ninety (90) days’ notice in writing.

 

4.              The Services

4.1            Audience Store will perform the Services and deliver the Deliverables detailed in the Media Plan and / or Insertion Order and / or SOW for the Client in accordance with these Terms.

4.2            Audience Store will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services and Deliverables. Audience Store will use its reasonable endeavours to ensure that any key personnel detailed in the SOW are committed to the provision of the Services and/or Deliverables.

4.3            The Client acknowledges and agrees that it may be necessary for Audience Store to replace the personnel involved in providing the Services and Deliverables with alternative personnel with similar levels of seniority and experience.

4.4            Each of the parties will use its reasonable endeavours to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW. Notwithstanding the foregoing, the parties expressly agree that any dates in such timetable shall be estimates only and time is not of the essence of the Agreement unless otherwise agreed in writing between the parties from time to time and that any failure by either party to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW shall not entitle the affected party to terminate the Agreement, with the exception of the Client’s obligations under clause 7.

4.5            Audience Store will co-operate with other communications suppliers appointed by the Client from time to time when developing communications plans and activities for the purposes of the Services. The Client shall ensure that its other communications suppliers co-operate with Audience Store and that such other communications suppliers shall work with Audience Store efficiently and in good faith.

4.6            The Client will co-operate fully with Audience Store in all matters relating to the Services.

4.7            The Client will provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services (including clear briefings and instructions) and ensure that such information is complete and accurate in all material respects.

4.8            Audience Store will co-operate with the Client and use reasonable care and skill in Audience Store’s performance and delivery of the Services and Deliverables.

4.9            The Client acknowledges that Audience Store’s ability to perform the Services or provide the Deliverables may depend on the fulfilment of assumptions, dependencies and Client responsibilities described in the SOW and / or Media Plan and / or Insertion Order. If Audience Store’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 (including in the event of any unmet dependency, incorrect assumption or unfulfilled Client responsibility) (Client Default):

4.9.1            without limiting or affecting any other right or remedy available to it, Audience Store shall 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 in each case to the extent the Client Default prevents or delays Audience Store’s performance of any of its obligations;

4.9.2            Audience Store shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Audience Store’s failure or delay to perform any of its obligations as set out in the Agreement; and

4.9.3            the Client shall reimburse Audience Store on written demand for any costs or losses sustained or incurred by Audience Store arising directly or indirectly from the Client Default.

 

5.              Approvals and acceptance

5.1            Any reference in this Agreement to the Client’s “written approval” shall mean written approval by directors or employees of the Client authorised to approve the SOW(s), Services and Deliverables and Media Plan(s) and Insertion Order(s) (each an “Authorised Person”) which shall not to unreasonably withheld or delayed.

5.2            For the purposes of this Agreement written approval shall mean approval signified by:

5.2.1            any SOW, Media Plan, Insertion Order, letter or purchase order from the Client bearing the signature of an Authorised Person;

5.2.2            an e-mail emanating from the e-mail address of an Authorised Person provided this is in circumstances where time does not permit approval as per sub-clause 5.2.1, and any such written approval under clause 5.2.1 or clause 5.2.2 shall not be unreasonably withheld or delayed.

5.3            Audience Store shall submit to the Client for its specific written approval Media Plans, Insertion Orders and estimates which include any individual Expense in excess of five hundred pounds (£500).

5.4            The Client’s written approval of Media Plans, Insertion Orders and estimates grants Audience Store the authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by such third party media owners or suppliers from whom Audience Store chooses to procure advertising space, time and/or other services.

5.5            Audience Store will advise the Client immediately of any material changes in the estimated cost of media or any material changes in Media Plans, Insertion Orders or work in progress previously approved in writing by the Client, unless such costs have been agreed as fixed.

 

6.              Amendments or cancellations: work in progress

6.1            The Client may request Audience Store to cancel or amend any and all SOWs, Media Plans, Insertion Orders or work in progress, by way of written notice. Audience Store will use its reasonable endeavours to comply with any such request provided that Audience Store is able to do so within its contractual obligations to media owners and suppliers and other third parties. Any amendment to the Agreement shall be in writing and signed by the parties (or their authorised representatives and shall be recorded as a variation to this Agreement.

6.2            In the event of any such cancellation or amendment in accordance with sub-clause 6.1, the Client will reimburse and indemnify Audience Store for any costs, charges or Expenses incurred by Audience Store to which Audience Store is committed. The Client shall also pay for Audience Store’s time as stated in the SOW (or otherwise agreed between the parties) and if not stated in the SOW, a sum equivalent to the greater of £2,000 or Audience Store’s standard rates or pro-rated commission covering the cancelled or amended Services and Deliverables as well as any charges imposed on Audience Store by third parties arising from the cancellation or amendment.

6.3            Cancellation of any individual SOWs or Media Plans or Insertion Orders under this clause 6 shall not affect the continuation in force of this Agreement, including any other SOWs or Media Plans or Insertion Orders entered into under these Terms.

 

7.              Terms of payment

7.1            Audience Store Fees (media buying): In consideration of Audience Store’s performance of any media buying Services, the Client shall pay Audience Store a commission of 15% (“Agreed Commission”) of the gross Media Costs (being the Media Costs after deduction of negotiated discounts but before deduction of standard agency commission) unless otherwise agreed in the SOW or Media Plan or Insertion Order. The Client shall pay Audience Store for the Media Costs in accordance with the remainder of this clause 7. For the avoidance of doubt, the Client’s obligation to pay the agreed commission shall be in addition to the Client’s obligation to repay Audience Store for the Media Costs.

7.2            Audience Store Fees (other services): In consideration of Audience Store’s performance of the any Services other than media buying and the delivery of any related Deliverables, the Client shall pay the Fees set out in and/or referred to in the SOW (or as otherwise agreed in writing with Audience Store), which may include commissions agreed with the Client.

7.3            Audience Store will invoice the Client in respect of Agreed Commission and Fees monthly in arrears and the Client will pay the invoice within thirty (30) days of the date of invoice, unless otherwise agreed in writing between the parties from time to time. Time for payment shall be of the essence of the Agreement.

7.4            Media Costs: Audience Store will invoice the Client in respect of Media Costs in accordance with the relevant Media Plan or Insertion Order (as applicable) and the Client will pay such invoices within thirty (30) days of the date of the invoice, unless otherwise agreed in writing between the parties from time to time. Time for payment shall be of the essence of the Agreement.

7.5            In relation to Media Costs the Client expressly acknowledges and agrees that Audience Store shall not be required to pay, refund or net off to the Client any media market rebates, volume discounts, early payment discounts, media market credits received by Audience Store in respect of the Media Costs nor any price differences arising from errors and/or adjustments on third party invoices.

7.6            Any fixed rates approved by the Client on Media Plans or Insertion Orders shall be fixed and not reconcilable.

7.7            Unless stated otherwise in an SOW or Media Plan or Insertion Order, any prices quoted for Media Costs on a Media Plan or Insertion Order which are not stated as fixed rate will be subject to reconciliation against actual Media Costs on a monthly basis by Audience Store. Audience Store will then either;

7.7.1            invoice the Client for any undercharge of the actual Media Costs; or

7.7.2            roll forward any overcharge of the actual Media Costs to set off against future Media Costs.

7.8            Where a surcharge is levied by a supplier of media against Audience Store and this results from late payment by the Client, the Client shall immediately reimburse to Audience Store the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

7.9            If late copy charges are levied by a media owner against Audience Store as a result of delay by the Client or Client Default, the Client shall immediately reimburse the amount of such late copy charges to Audience Store.

7.10         A levy of 0.1% is payable to the Advertising Standards Board of Finance (ASBOF) in relation to non-broadcast advertising, and to the Broadcast Advertising Standards Board of Finance (BASBOF) in relation to broadcast advertising. The Client shall reimburse to Audience Store any such levy, cost or expense imposed by the ASBOF or BASBOF.

7.11         In the event that Audience Store is unable to obtain credit risk insurance in respect of the Client or if Audience Store’s credit insurers revise or withdraw cover for the Client, Audience Store reserves the right to revise its terms of payment and if necessary ask for payments in advance of media bookings and/or seek suitable guarantees from the Client. If it is not possible to reach an agreement on suitable revised terms Audience Store will have the right to terminate this Agreement in accordance with clause 16.3.

7.12         Audience Store reserves the right, without limiting Audience Store’s remedies under clause 16, to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of five (5) per cent above the base rate from time to time of National Westminster bank plc, provided that the rate charged to Client shall not be higher than the maximum rate allowable under applicable law. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Audience Store receives the full outstanding amount together with all accrued interest.

7.13         In the event of late payment Audience Store reserves the right to:

7.13.1         withhold further delivery of Services and/or Deliverables under the SOW until payment in full has been received from the Client; and

7.13.2         alter the payment terms applicable to this Agreement including without limitation requiring the Client to pay in advance.

7.14         Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

7.15         Audience Store will invoice the Client at cost in respect of any Expenses incurred by Audience Store in performing the Services and delivering the Deliverables.

7.16         Unless otherwise stated in the Media Plan and / or Insertion Order and / or SOW, all Fees and other costs stated are in pounds sterling (GBP£) and exclusive of VAT, which the Client shall additionally be liable to pay to Audience Store at the prevailing rate, subject to the receipt of a valid VAT invoice.

7.17         Client acknowledges that services provided by Audience Store to the Client and to the Audience Store’s other advertiser clients may, on a collective basis, qualify for rebates or volume discounts arising from full compliance with media owner, media vendor, platform, supplier and / or publisher conditions of trading and prompt payment. Audience Store may receive compensation (including but not limited to remuneration and special terms, including free spots, agency function discounts and other fiscal benefits) from media owners, media vendors, platforms, suppliers and / or publishers, which in some circumstances are determined by the total agency volume. Audience Store shall be entitled to retain and use all such compensation, rebates or volume discounts to the extent that such compensation, rebates and volume discounts do not arise solely from the Client’s own trading volumes or payment terms, at Audience Store’s sole discretion.

 

8.              Media: business terms and selection

8.1            Audience Store enters into all contracts with third parties as principal (unless otherwise specified by the relevant third party) and enters into such contracts with media and third party suppliers in respect of Services in accordance with such suppliers standard or individual conditions and contracts (“Third Party Contracts”) and the Client hereby acknowledges that its right to use or otherwise benefit from any services acquired by Audience Store under any Third Party Contracts shall be as set out in the terms and conditions of such Third Party Contracts. The Client hereby indemnifies and shall keep Audience Store indemnified against any losses, liabilities costs or expenses caused by any act or omission of the Client which puts Audience Store in breach of any such Third Party Contracts. Audience Store shall provide a copy of the relevant Third Party Contract to the Client if requested and to the extent permitted by existing confidentiality provisions with the relevant third party.

8.2            Audience Store shall use reasonable care and skill in the selection and appointment of Media Supplier(s).

8.3            Audience Store shall not be liable to Client for any failure to comply with its obligations under this Agreement or for any losses, liabilities costs or expenses incurred as a result of a failure by any Media Supplier or other third party supplier to comply with the relevant Third Party Contract or if such Media Supplier or third party enters into liquidation or into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business, or if the Third Party Contract is otherwise terminated. In such an event Audience Store will work with the Client to make alternative arrangements for the delivery of any relevant Services.

 

9.              Insurance

9.1            During the Term, Audience Store shall take out and maintain professional indemnity with reputable insurers. Upon Client’s request Audience Store will provide the Client with evidence that such insurance is in place.

 

10.            Confidential Information

10.1         Each party undertakes that it shall not at any time during the Term or thereafter disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.

10.2         Each party may disclose the other party’s confidential information:

10.2.1         to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10.2; and

10.2.2         as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3         No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

10.4         The Client acknowledges and agrees that any identifiable and original idea or concept presented by Audience Store in relation to any promotion or advertising campaign developed by Audience Store shall be acknowledged as being available only for such promotion or campaign whether or not used for such promotion or campaign and shall not be used for any other purposes whatsoever without Audience Store’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without Audience Store’s prior written approval and agreement being reached regarding appropriate remuneration for Audience Store.

10.5         The Client acknowledges that nothing in this Agreement shall affect Audience Store’s right to use as it sees fit any techniques, ideas or know-how, general marketing and/or advertising intelligence and/or Residuals gained by Audience Store during the performance of this Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the Client’s confidential information.

10.6         Nothing in this Agreement shall prohibit Audience Store from retaining one copy of the Deliverables for its internal archive.

 

11.            Intellectual Property

11.1         Audience Store acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to Audience Store a non-exclusive, royalty-free, right and licence during the Term to use, copy, operate, process, modify and sub-license the Client Materials solely for the purposes of providing the Services and Deliverables.

11.2         The Client warrants that the receipt and use in the performance of this Agreement by Audience Store, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party.

11.3         The Client shall indemnify Audience Store 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 Audience Store arising out of or in connection with any claim made against Audience Store, its agents, subcontractors or consultants by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Audience Store’s use of the Client Materials (including any Client Materials incorporated into any Audience Store Materials).

11.4         Subject to clause 10.4 and the remaining provisions of this clause 11 and subject to Audience Store receiving payment of all fees attributable to Audience Store Materials Audience Store hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property rights in Audience Store Materials which are capable of being assigned (excluding, for the avoidance of doubt, any Third Party Materials) together with the right to sue for past infringement of the Intellectual Property Rights in Audience Store Materials. As such, it is the Client’s responsibility to undertake any registrations or clearance searches for trademark, design and/or patent protection.

11.5         The Client acknowledges that all Intellectual Property Rights in Audience Store Proprietary Materials shall be owned by and remain the property of and vested in Audience Store. Subject to Audience Store receiving payment of the Fees attributable to the Audience Store Proprietary Materials licensed under this clause, Audience Store hereby grants to the Client a non-exclusive, non-transferrable, perpetual, royalty-free licence to use such Audience Store Proprietary Material as are included in the Deliverables for the purpose of receiving and using the Services and the Deliverables. Unless otherwise agreed in writing between the parties from time to time, the Client shall not sub-license, assign or otherwise transfer the rights granted in this clause 11.5. The Client shall limit use of and access to the Audience Store Materials and the Audience Store Proprietary Materials to such of the Client’s employees as are directly involved in the utilisation of the Deliverables internally throughout Client’s business and who are bound to preserve the confidentiality thereof. Prior to delivery of the Deliverables, Audience Store shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Material for the purpose set out in the SOW. Audience Store shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Material, and the Client hereby indemnifies and keeps Audience Store indemnified against any 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 Audience Store as result of the Client breaching any such restrictions.

11.6         Audience Store agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverable, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 11.

11.7         Audience Store shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client.

 

12.            Data Privacy

12.1         In this clause 12, the words “Personal Data”, “Controller”, “Processor”, “Data Subject”, “Commissioner”, “Personal Data Breach” and “processing” shall have the meaning given to them in the UK GDPR.

12.2         Client acknowledges and agrees to allow Audience Store, its affiliates and sub-contractors, non-exclusive rights to collect, analyse, manipulate, and store non-personal user and customer data on behalf of Client.  In particular Client agrees that Audience Store and its suppliers are entitled to place cookies, pixel tags, pixel-less techniques or web beacons and related technologies and other relevant tags on, and collect information (including Client’s confidential information) from, the Client’s websites and other relevant sources of data in relation to the provision of the Services.

12.3         Both parties will comply with all applicable requirements of Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.

12.4         The Client and Audience Store acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Audience Store is the Processor in respect of any Client Personal Data. The SOW and / or the Media Plan and / or Insertion Order as applicable sets out the scope, nature and purpose of processing by Audience Store, the duration of the processing and the types of Personal Data and categories of Data Subject.

12.5         Should the determination in clause 12.4 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 12.

12.6         Without prejudice to the generality of clause 12.3, Client represents and warrants that:

12.6.1         all data provided by or on behalf of Client to Audience Store has been collected and processed in compliance with Data Protection Legislation,

12.6.2         it has obtained all rights, consents, authorisations and/or approvals necessary in connection with the collection and use of Client Personal Data by Audience Store for the provision of the Services (including, where applicable, a Data Subject’s consent in relation to profiling), and

12.6.3         it has the legal right and/or has obtained appropriate consents to disclose the Client Personal Data to Audience Store and/or lawful collection of the Client Personal Data by Audience Store on behalf of the Client in connection with the Services to be performed under this Agreement.

12.7         Without prejudice to the generality of clause 12.3, in relation to Client Personal Data processed in connection with its performance of the Services, Audience Store shall:

12.7.1         process Personal Data only on documented instructions from the Client, unless Audience Store is required by Applicable Laws to otherwise process that Client Personal Data. Where Audience Store is relying on Applicable Laws as the basis for processing Client Processor Data, Audience Store shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Audience Store from so notifying the Client;

12.7.2         only process Personal Data in the United Kingdom or European Economic Area and shall not transfer, transmit or otherwise store Client Personal Data outside of the United Kingdom or European Economic Area without the prior written consent of the Client;

12.7.3         ensure that persons authorised to process Client Personal Data are obliged to keep the Client Personal Data confidential.

12.7.4         implement appropriate technical and organisational measures to protect and safeguard the Client Personal Data against unauthorised or unlawful processing of the Client Personal Data and against its accidental loss, damage or destruction, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

12.7.5         not appoint a sub-contractor to process Personal Data without:

(a)         the express prior written consent of the Client; and

(b)         imposing the same contractual data protection obligations on such sub-contractor as are in this Agreement;

12.7.6         assist the Client upon request and at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators which relates to processing of Client Personal Data;

12.7.7         notify the Client without undue delay on becoming aware of a Personal Data Breach;

12.7.8         at the choice of the Client, delete or return any or all Client Personal Data to the Client upon any request of the Client after the end of the provision of the Services relating to processing, unless Audience Store is required by Applicable Law to store the Client Personal Data; and

12.7.9         make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this clause 12 and its compliance with the Data Protection Legislation and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (including any regulatory bodies or accrediting bodies).

12.8         The Client agrees to indemnify and keep Audience Store indemnified and defend at its own expense Audience Store against all costs, claims, damages or expenses incurred by Audience Store or for which Audience Store may become liable due to any failure by the Client or its employees or agents to comply with any of its obligations under this clause 12.

12.9         The Client acknowledges that Audience Store is reliant on the Client for direction as to the extent to which Audience Store is entitled to use and process the Client Personal Data. Consequently, Audience Store will not be liable for any claim brought by a Data Subject arising from any action or omission by Audience Store, to the extent that such action or omission resulted directly from the Client’s instructions.  

 

13.            Warranties

13.1         If there is an error in Advertising as published or publication in respect of the Advertising is delayed or does not occur as planned, Audience Store will not be liable unless this is caused by its default or neglect.

13.2         The Client warrants that to the best of its knowledge information and belief all information supplied to Audience Store before and during the Term will be accurate and not in any way contrary to any law applicable in any part of the Territory.

13.3         The Client acknowledges and agrees that in providing the Services, Audience Store shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:

13.3.1         the number, proportion or type of people likely to be exposed to the Advertising;

13.3.2         the number of such exposures each person is likely to receive; and

13.3.3         the cost of achieving such exposures.

13.4         The Client acknowledges that the estimates and / or targets detailed in clause 13.3 are ultimately beyond Audience Store’s control. Audience Store gives no warranties as to the accuracy of such estimates and / or targets or as to the actual figures in respect of matters set out at subclauses 13.3.1 – 13.3.3 and no liability shall attach to Audience Store in respect of any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates and / or targets. Audience Store shall perform search engine optimisation services with reasonable care, skill and diligence in accordance with good practice in Audience Store’s industry, profession or trade but the Client acknowledges and agrees that Audience Store can provide no guarantees or warranties with regard to achieving certain ranking results.

13.5         Each party warrants that it has the full power and authority to enter into this Agreement.

 

14.            Guarantee minimum supply

14.1         Audience Store shall not without the Client’s prior written approval agree with any Media Supplier on the Client’s behalf to a Guarantee Minimum Supply.

14.2         In the event that the Client gives prior written approval to Audience Store to agree on the Client’s behalf a Guarantee Minimum Supply the Client agrees without prejudice to the generality of the provisions of clause 8.1 to indemnify and keep indemnified Audience Store against all actions, proceedings, costs, damages, demands, expenses, liabilities, penalties, surcharges, fines, losses (including without limitation economic or consequential loss) suffered or to be suffered by Audience Store in connection with or arising out of Audience Store agreeing to a Guarantee Minimum Supply with a Media Supplier on the Client’s behalf.

 

15.            Limitation of liability

15.1         References to liability in this clause 15 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

15.2         Nothing in this Agreement shall exclude or in any way limit the Parties’ liability for fraud or fraudulent misrepresentation, or for death or personal injury caused by its negligence (or the negligence of its employees, agents or subcontractors) or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability to the extent such liability may not be excluded or limited as a matter of law.

15.3         Subject to clause 15.2, the following types of loss are wholly excluded:

15.3.1         Loss of profits;

15.3.2         Loss of sales or business;

15.3.3         Loss of agreements or contracts;

15.3.4         Loss of anticipated savings;

15.3.5         Loss of use or occupation of software, data or information;

15.3.6         Loss or damage to goodwill; and

15.3.7         Indirect or consequential loss.

15.4         Subject to clause 15.2, clause 15.3 and excluding any liability arising under any indemnity under this Agreement, Audience Store’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the lower of £10,000 (ten thousand pounds) and the total net Fees paid to Audience Store hereunder during the preceding twelve (12) months.

15.5         This Agreement states the full extent of the Parties obligations and liabilities in respect of the Advertising and the performance of the Services and delivery of the Deliverables.

15.6         The Parties agree that any condition, warranty representation or other term concerning the delivery of the Deliverables and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise (including sections 3 to 5 of the Supply of Goods and Services Act 1982), is excluded to the maximum extent permitted by law.

15.7         Nothing in the foregoing provisions shall preclude either party obtaining injunctive or other non-financial relief to which it is entitled.

15.8         This clause 15 shall survive termination of the Agreement.

 

16.            Termination

16.1         Without affecting any other right or remedy available to it, either Party may terminate this Agreement by service of notice in accordance with clause 3.

16.2         Without affecting any other right or remedy available to it, either party may terminate this Agreement immediately without financial penalty upon giving written notice to the other party if:

16.2.1         the other party materially breaches this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 30 days’ of receiving such written notice; or

16.2.2         the other party takes any step or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or,  if an administrator or receiver is appointed over the whole of any part of the other’s assets or if the other enters into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business; or

16.2.3         the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

16.2.4         the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy.

16.3         Audience Store shall be entitled forthwith to terminate this Agreement by written notice to the Client if Audience Store is unable to obtain normal credit insurance in respect of the Client and advance payments or acceptable guarantees have not been made available by the Client within fourteen (14) days after Audience Store’s written request under the provisions of clause 7.9. During the period between Audience Store’s request for advance payments or suitable guarantees and the earlier of either the Client providing them or the end of the Term, all Audience Store’s obligations in relation to the booking of media shall be automatically suspended, as will any other Audience Store obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf.

16.4         The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done, any Fees due and expenditure committed by Audience Store until the end of the Term. For avoidance of doubt the Term includes any notice period and payments due include commission on media booked during any notice period but where transmission falls outside such period.

16.5         Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, Audience Store will give the Client all reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media owners, third parties or others for space or time yet to be used and subject to, all rights and claims thereto.

16.6         If, prior to notice of termination of this Agreement, Audience Store has at the request of the Client prepared detailed Media Plans or Insertion Orders or proposals for future advertising in respect of which Audience Store has not been remunerated, the Client shall pay to Audience Store fair compensation for work done at Audience Store’s standard rates.

16.7         If the Client wishes to use, after the Term and through another agency, a Media Plan drawn up by Audience Store during the Term for the Client’s future use, the Client shall not do so without Audience Store’s prior written consent and agreement being reached regarding appropriate remuneration for Audience Store.

16.8         Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive termination, shall remain in full force and effect notwithstanding such termination.

16.9         Any Third Party Contracts that cannot be cancelled or assigned by Audience Store to Client shall be carried to completion by Audience Store, and Client shall remain liable and indemnify for any payments, costs, Expenses or charges incurred by Audience Store or to which Audience Store is committed (including any charges imposed on Audience Store under any Third Party Contract as a result of cancellation) or due to Audience Store as applicable compensation as outlined in any SOW.

 

17.            Compliance

17.1         Each party shall comply with all legislation, regulations, and other rules having equivalent force in the United Kingdom which are applicable to that party in connection with this Agreement.

17.2         Client acknowledges its responsibility for compliance with all data and privacy laws and regulations, including but not limited to the requirements to have up to date and accurate privacy and cookie notices on their websites where relevant.

17.3         Audience Store will use reasonable endeavours to ensure that any Service and/or Deliverable complies with all legislation, regulations, and other rules in the United Kingdom relating to the performance of the Services and/or the Deliverables.

17.4         Upstream auditing. Audience Store supports the IAB initiative ads.txt (also known as Authorised Digital Sellers). Where an ads.txt file is present, Audience Store will purchase inventory from authorized sellers only. In the absence of an ads.txt file Audience Store will not exclude the publisher from targeting but will continue to recommend that all publishers adopt the latest version of ads.txt at the earliest opportunity.

17.5         Downstream auditing. Audience Store supports the IAB initiative ads.txt. Where an ads.txt file is present, Audience Store requires that only publisher inventory from authorised sellers is purchased. In the absence of an ads.txt file Audience Store will not exclude the publisher from targeting but will continue to recommend that all publishers adopt the latest version of ads.txt at the earliest opportunity.

 

18.            General

18.1         This Agreement constitutes the entire agreement between the parties, and supersedes any and all agreements and terms, whether written or oral, implied or explicit, and may only be amended or modified by a written agreement by both parties (or their authorised representatives). Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

18.2         A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. Failure or delay by either party in exercising any rights or remedy under this Agreement shall not operate as a waiver of any such right or remedy.

18.3         If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18.4         Neither party shall be in breach of this Agreement nor liable for any failure to perform or delay in performance of any of its obligations under this Agreement if such delay or failure is caused by a Force Majeure Event.

 

19.            Notices

19.1         Any notice, invoice or other communication given to a party under or in connection with this Agreement shall be in in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Media Plan and / or Insertion Order and / or SOW.

19.2         Any notice, invoice or other communication shall be deemed to have been received:

19.2.1         if delivered by hand, at the time the notice is left at the proper address;

19.2.2         if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

19.2.3         if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

19.3         This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

 

20.            Assignment and other dealings

20.1         Audience Store may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

20.2         The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Audience Store.

20.3         A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

21.            Annual Review

The Parties agree to meet annually and at least sixty (60) days prior to the anniversary of the Commencement Date (or more frequently if agreed between the parties from time to time) in order to; review their relationship, the Services and Fees the subject of this Agreement and agree to negotiate in good faith any necessary amends effective from the anniversary of the Commencement Date. Should the review and negotiations not be concluded prior to the anniversary of the Commencement Date, the Parties agree that Audience Store is entitled to continue invoicing the Client on the terms of the SOW or this Agreement until such new Services and Fees are applicable. For the avoidance of doubt, any changes in the Fees will be backdated to the anniversary of the Commencement Date, always provided that new Fees are not lower than prior year Fees in which case new Fees will then be effective only upon agreement and prospectively for the remainder of the annual period. Changes in Fees payable to Audience Store will be related to changes agreed in the SOW or level of services provided by Audience Store.

 

22.            Non-solicitation

22.1         Neither Party shall, during the term of this Agreement and for a period of twelve (12) months from the Termination Date, (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of that Party, any employee, worker or independent contractor of that Party who is employed or engaged in providing or receiving the Services under this Agreement at any time during the Term;

22.2         A Party shall not be in breach of clause 22.1 as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or contractors of the other Party.

 

23.            Governing law and jurisdiction

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it is its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any dispute, claim or matter (including non-contractual disputes or claims) arising under or in connection with this Agreement or its subject matter or formation or the legal relationships established by this Agreement.

 

24.            Client Logo

24.1         Nothing in this Agreement shall prohibit Audience Store from including the Client’s name and logo on its public customer lists and disclosing and summarising generally the nature of any work being performed hereunder or under any SOW and / or Insertion Order and / or Media Plan as applicable.  The Client hereby grants to Audience Store a non-exclusive, royalty-free, perpetual right and licence to use the Client’s name and logo for such purposes.

24.2         Audience Store shall not publish any detailed case studies relating to the Client without the prior written approval of the Client, such approval not to be unreasonably withheld, delayed or conditioned.