These Terms apply to the media buying and planning, data, creative, search engine optimisation and other advertising and marketing related services to be provided by ACCORD MARKETING LIMITED, a company with its address at Castlewood, 77-91 New Oxford St, London WC1A 1DG and company number 03874258 ("Accord") to the Client, as detailed in the insertion order or other document (the "Booking Form") to which these Terms relate.
These Terms and the Booking Form together constitute the "Agreement" between the parties. Each Booking Form that is signed by both parties shall constitute a separate agreement between the parties. These Terms shall apply to the exclusion of all other terms and conditions of the Client, notwithstanding anything to the contrary in any such documents.
1.1 The Client appoints Accord to provide the Services described in the Booking Form (the "Services"). The Services shall be performed subject to and in accordance with the provisions of the Agreement.
1.2 Accord agrees to act as a principal and not as an agent in respect of all of their dealings with the media and other suppliers in respect of the Client's advertising, except where the parties agree otherwise in writing.
2.1 In consideration of the performance of the Services, the Client shall pay Accord the fees detailed in the Booking Form (the "Fees"). Unless otherwise stated the fees are payable in GBP.
2.2 The Client will also pay Accord for all charges levied by:
(a) media providers for the placement of advertising as approved in advance by the Client, in accordance with any media plan provided by Accord; and
(b) advertising exchanges, trading platforms or other third party intermediaries or providers, including automated advertising bidding service providers (together the "Digital Intermediaries") involved in the placement, delivery or optimisation of the Client's digital advertisements or other Services identified in a Booking Form.
2.3 The remuneration includes all travel, subsistence and despatch costs within the Greater London area which are incurred by Accord in the course of providing the Services. All other travel, despatch, subsistence and other disbursements and extraordinary costs properly and reasonably incurred in providing the Services will be chargeable to the Client at net cost to Accord, provided each such expenditure has been approved in advance by the Client or pursuant to a budget approved in advance by the Client.
3.1 The Agreement shall apply from the date specified in the Booking Form and, subject to earlier termination in accordance with this Agreement, continue in full force and effect for the term specified in the Booking Form (the "Initial Term"), and thereafter unless and until terminated by either party giving the other not less than the period of notice specified at clause 3. 5 below
3.2 Where no term is specified in the Booking Form, either party may terminate the Agreement by giving not less than the period of notice specified at clause 3.5 below.
3.3 Upon termination of the Agreement, the Client shall promptly pay all outstanding Fees and reimburse Accord for any costs properly incurred by Accord in the course of performing the Services and to which it is committed at the time of termination.
3.4 Either party may terminate this Agreement immediately upon written notice to the other party:
(a) in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
(b) if the other party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
3.5 Other than by reference to clause 3.4 above, this agreement can only be terminated by either party giving to the other written notice as set out below, such period of notice being determined by the Client’s spend during the 12 month period up to and including the date on which notice was given.
3.6 During the period of notice, Accord will continue to have ownership of the Intellectual Property of all Creative Materials and these cannot be used during this period of notice by the Client without the express written permission of a member of the Accord Board.
3.7 If the Client wishes to terminate this Agreement without giving the required period of notice to Accord as detailed in clause 3.5 above, this can be agreed by Accord subject to the Client paying Accord a sum equivalent to 10% of the advertising spend, spent by the Client with Accord during the 12 month period up to and including the date on which notice was given.
3.8 Notwithstanding any other provision of the Agreement, Accord may immediately, on written notice to the Client, suspend or terminate the Services if:
(a) any of its suppliers (including without limitation media providers or Online Intermediaries) suspend or terminate the services being supplied to Accord, provided always that Accord will only suspend or terminate that part of the Services affected by the actions (or inaction) of any such third party supplier; or.
(b) any sum that is the subject of one or more invoices submitted by Accord under or in connection with this Agreement remains unpaid by the Client for at least 14 days beyond its due date for payment.
4.1 After obtaining the Client's general approval of campaigns, Accord will submit to the Client for specific approval estimates or quotations of the costs of the various items of advertising or digital services (whether in an insertion order or otherwise).
4.2 The Client's written approval (which shall include email) of such estimates and quotations will be Accord's authority to make reservations and contracts for space, time and other facilities.
4.3 Accord reserves the right to engage Digital Intermediaries without the prior consent of the Client up to a cost of 5% of the total media spend to assist with approved campaigns if Accord reasonably considers that the use of the Digital Intermediary is appropriate for the Client’s needs. Accord will seek the Client’s consent for costs above 5% of the total media spend. All costs will be re-charged in accordance with clause 2.2.
5.1 The Client may request in writing that Accord changes, rejects, cancels or stops all plans, schedules, insertion orders or work-in-progress and Accord shall take reasonable steps to comply, to the extent that Accord can do so within Accord's contractual obligations to suppliers.
5.2 In the event of any cancellations or amendment as aforesaid, the Client agrees to reimburse Accord for any charges or expenses which Accord has incurred or to which Accord is contractually committed.
6.1 The payment terms are based upon the principle that the Client will ensure that Accord is paid in time to meet the liabilities which arise from orders placed by Accord with media owners and Digital Intermediaries in respect of the Client's advertisements.
6.2 All invoices in accordance with the Booking Form approved by the Client will be presented to the Client during the first few days of the month of transmission, insertion or delivery and shall be due for payment 30 days from the date of invoice, unless specified otherwise.
6.3 Some media providers and Digital Intermediaries require payment of their accounts to be in their hands by specified dates, otherwise a surcharge is incurred. The Client agrees to pay Accord this surcharge if the Client fails to pay by the due dates.
6.4 All invoices presented to the Client by the due date and not subject to dispute which are not paid by the due date shall be subject to an interest charge at the statutory rate specified in the Late Payment of Commercial Debts (Interest) Act 1998.
6.5 The Client will promptly provide Accord with purchase order numbers in respect of all approved media and Digital Intermediary charges and the Client will use such purchase order numbers on all relevant invoices. The absence of a purchase order number on an invoice will not constitute a valid reason for withholding payment.
6.6 Accord is insured against credit risks and all clients of Accord must be acceptable to Accord's insurers. In the event therefore of the insurers revising or withdrawing cover in respect of the Client, Accord shall revise its terms of payment and if necessary ask for payment in advance. Should the aforementioned occur and a suitable agreement cannot be reached between the Client and Accord within 14 days of such request, Accord shall be entitled to immediately terminate the Agreement by written notice to the Client.
6.7 If the Client has a bona fide dispute in respect of the whole or any part of any invoice, it shall use all reasonable endeavours to notify Accord in writing within 14 days after its receipt of the invoice. If the Client notifies Accord in writing that it disputes the whole or any part of sums payable under any invoice, the Client may withhold payment of the amount in dispute, but shall pay the undisputed part in accordance with this Agreement. The parties shall co-operate in good faith to resolve the dispute over the invoice as amicably and promptly as possible.
7.1 Nothing in the Agreement shall exclude or limit liability for fraud, death or personal injury caused by negligence or any other type of liability to the extent it may not be excluded or limited as a matter of law. Subject to this:
(a) Accord's maximum aggregate liability to the Client under or in connection with this Agreement for losses or damages suffered for any single event or series of related events and whether in contract, tort (including negligence) or otherwise will in no in circumstances exceed the greater of: (i) £5,000; and (ii) the Fees payable by the Client under this Agreement; and
(b) Accord will not be liable under or in connection with this Agreement for any:
(i) loss of actual or anticipated income or profits, loss of revenue, loss of goodwill or damage to reputation, loss of anticipated savings, loss of contracts; or
(ii) special, indirect or consequential loss or damage of any kind,
in each case howsoever arising, and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
7.2 Accord shall not be liable for any delay in or omission of publication, transmission or delivery or any error in any advertisement or its placement in the absence of negligence on Accord's part.
7.3 While Accord will take all reasonable care to ensure that its systems and services are safe and secure, Accord is unable, due to circumstances beyond its reasonable control, to guarantee that its systems, services and deliverables will be free from viruses or other executable code. Should Accord become aware of any viruses or executable code that may adversely affect Client's business, it will inform the Client as soon as possible.
7.4 Accord shall not be in any way responsible for the preparation, content, production, supplying or copy of advertisements supplied or to be supplied by the Client or its agents, subcontractors or other representatives.
7.5 If due to war, strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, import or export embargo, ice obstruction, natural catastrophes or other act, event, non-happening, omission or accident over which Accord has no control, Accord fails to complete its assignment or deliver the Services in the manner and within the time required by the terms of the Agreement Accord will not be responsible for any loss or damage which may be incurred by the Client as a result of such failure.
8.1 Client will give Accord clear briefings and will make available to Accord all relevant information required for its performance of the Services. Client shall provide any data, documents or other materials to be supplied by the Client to Accord under the Agreement ("Client Materials") promptly so that Accord is able to comply with its obligations under the Agreement.
8.2 The Client hereby warrants and undertakes that:
(a) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b) it shall in connection with this Agreement, and the Client Materials shall, comply with all applicable laws, regulations and any applicable codes of practice, and it shall take appropriate steps to verify such compliance;
(c) use of Client Materials will not infringe the rights (including without limitation the intellectual property rights) of any third party anywhere in the world;
(d) Client Materials will not be obscene or discriminatory and will not defame or breach the privacy rights of any third party;
(e) Client Materials (including, without limitation, instructions in any insertion order or similar document) are accurate in all material respects;
(f) Client Materials will not contain any executable code, virus or malicious code;
(g) it shall comply with any third party policies applicable to the Services that Accord notifies to Client from time to time;
(h) it shall not set, place, read, write, access, delete or otherwise use any cookies or similar technology in connection with the Services.
8.3 The Client hereby indemnifies and keeps Accord indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by Accord as a result of any breach of the above warranties and undertakings.
8.4 The Client agrees to inform Accord without delay if it considers that any claim or trade description in any Client Materials placed by Accord on behalf of the Client is false or misleading in any way.
9.1 Accord warrants that: (i) the individual signing this Agreement (and the Booking Form) on behalf of Accord has (and shall have) the full authority to legally bind Accord; and (ii) it will perform the Services in a workmanlike manner and with reasonable skill and care.
10.1 Unless otherwise stated, Accord's contracts with media, Digital Intermediaries and other suppliers for the Client's advertising are made in accordance with media rate cards and/or other standard or individual conditions and contracts. The rights and liabilities between the Client and Accord shall correspond to those between Accord and the various media, Digital Intermediaries and suppliers under such conditions, and the Client hereby indemnifies and keeps indemnified Accord against all losses, claims, liabilities, damages, costs and expenses suffered as a result of any breach by the Client of any third party terms and conditions which Accord has entered into on the Client's behalf.
11.1 It is recognised that during the course of business certain confidential information concerning marketing, sales, new products, media buying rates, media plans, pricing (including that of Digital Intermediaries) and the like, will be communicated to Accord by the Client and vice versa. Each party undertakes to maintain the confidentiality of the other party's confidential information and only use such confidential information in the performance of its obligations under this agreement. Both parties shall instruct all employees that they have an obligation to ensure confidentiality of such information at all times. It is agreed that this obligation of confidentiality shall continue after termination.
(a) "Background Materials" means Creative Material in existence prior to the date on which it is intended to use them in connection with the Services and in relation to which the Intellectual Property Rights are owned by Accord;
(b) "Creative Material(s)" means the advertising copy and other creative materials described in the Booking Form that are to be provided by Accord under this Agreement, but excluding any Client Materials;
(c) "Intellectual Property Rights" means all copyright, patents, database rights, trademarks, design rights and any other proprietary right, now known or hereinafter created, together with all extensions and renewals of such rights;
(d) "Third Party Materials" means Creative Materials in which the Intellectual Property Rights are owned by a third party.
12.2 The Client hereby grants Accord and its group companies and other third party suppliers engaged in the provision of the Services a non-exclusive, non-transferable royalty-free licence during the term of the Agreement to use the Client Materials in connection with the Agreement.
12.3 The Client acknowledges and agrees that all Intellectual Property Rights in the Creative Materials shall immediately upon creation vest in and shall be and remain the exclusive property of Accord.
12.4 Subject to the remaining provisions of this Clause 12, upon payment of all Fees due for the Creative Material intended to be assigned (and provided that no other sum that is payable at that time by the Client to Accord pursuant to this Agreement is overdue), Accord hereby assigns the Intellectual Property Rights owned by Accord in that Creative Material to Client. At Client's cost and expense, Accord agrees to execute and deliver, promptly upon request, any documents, or do all such further acts, that the which Client may reasonably request to evidence, obtain or perfect the assignment of rights to Client set out in this Clause 12.
12.5 The Client acknowledges that all Intellectual Property Rights in the Background Materials shall be owned by and remain the property of and vested in Accord (or its licensors). Subject to Accord receiving payment of all Fees and subject to ongoing compliance by the Client with the terms of this Agreement, Accord hereby grants to Client a perpetual, non-exclusive, non-assignable, non-sub-licensable royalty-free licence to use in the UK, and such other countries as Accord may agree in writing, the Background Materials in connection with the Creative Materials.
12.6 If and to the extent that any of the Creative Materials comprise or include any Third Party Materials, Accord shall procure a licence for Client to use such work on such terms as may be agreed between Accord and the relevant third party.
12.7 Notwithstanding any of the above, Accord shall retain all know how obtained in connection with the Services and Accord shall not be prevented nothing in this Agreement shall prevent Accord from using any know how, ideas , functionality or concepts acquired before or during the performance of the Services for any purpose, subject always to Accord's obligations of confidence to Client under Clause 11.
(a) "Data Controller" has the meaning given in the DPA;
(b) "Data Subject" means an individual who is the subject of Personal Data;
(c) "DPA" means the Data Protection Act 1998 (as replaced, updated or amended from time to time);
(d) "Personal Data" has the meaning set out in the DPA;
(e) "Processing and process" have the meaning set out in the DPA.
13.2 The Client and Accord acknowledge that for the purposes of the DPA, Accord is the data processor in respect of any Personal Data processed by Accord.
13.3 Where Accord processes Personal Data on behalf of Client, then Accord shall:
(a) process such data solely in accordance with Client's reasonable instructions from time to time;
(b) adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
13.4 The Client warrants and undertakes to Accord that during the term of this Agreement:
(a) it has, and will continue to have, the necessary consents from Data Subjects to permit Accord (and its contractors) to process Personal Data in accordance with this Agreement;
(b) it will process the Personal Data in compliance with all applicable laws, regulations and codes of practice.
13.5 The Client hereby indemnifies and keeps Accord indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by Accord, its group companies and contractors due to any failure by the Client or its employees or agents to comply with this Clause 13, provided always that such indemnity shall not cover any such loss or damage caused by Accord's negligence or by Accord being in breach of this Clause 13.
14.1 The Agreement and the documents referred to in it contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:
(a) in entering into the Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement; and
(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in the Agreement shall be for breach of contract as provided in the Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
14.2 The Agreement states the full extent of Accord's obligations and liabilities in respect of the performance of the Services and the parties agree that any condition, warranty, representation or other term concerning the performance of the Service which might otherwise be implied into or incorporated in the Agreement, whether by statue, common law or otherwise, is excluded to the maximum extent permitted by law.
15.1 Client shall not be entitled to assign, sub-license or otherwise transfer the benefit or burden of the Agreement to any person without the prior written agreement of Accord.
15.2 The Client shall not without the prior written consent of a member of the Accord Board, solicit the services of any Accord employee, who has been engaged in the provision of services to the Client during the period of this agreement, nor for the period of time set out in the employees Terms and Conditions of Employment as they relate to “Restrictions when your employment with Accord ends”.
15.3 In the event of any conflict between the provisions set out in the Booking Form and the Terms, the Terms shall take precedence in relation to that matter.
15.4 If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of the Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
15.5 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party's right later to enforce or to exercise it.
15.6 All notices, which are required to be given hereunder, shall be in writing and shall be sent to the address of the recipient set out in the Booking Form. Any such notice may be delivered by hand or by first class post or facsimile and shall be deemed to have been served by hand when delivered if by first class post, 48 hours after posting and if by facsimile when delivery confirmation is received.
15.7 A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.8 We reserve the right to amend these Terms by publishing a note on our website or by using reasonable endeavours to bring the new Terms to your attention.
15.9 The construction, validity and performance of the Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with the Agreement.
15.10 Creative, development and other authoring tools, including Accord’s source, master or native files, are wholly owned by Accord within the terms of our agreement. Transfer to The Client will incur fees.
Special Terms Applicable:
A. TO INSIGHT;
C. TO HOSTING SERVICES
16.1 Where the Services include provision or use of Accord's reporting platform "Insight" or any other reporting platform described in the Booking Form (together "Insight"), at the Client's request Accord will issue the Client with a single login to allow the Client to access Insight in order to track its campaigns, measure marketing performance and access certain other information and documents ("Marketing Performance Data").
16.2 The login credentials are personal to the Client and it shall not share them with any third party. Accord shall be entitled to treat all access to Insight using the Client's login credentials as access by the Client. If the Client believes that its login credentials have been compromised, it must inform Accord immediately and Accord will take steps to issue fresh credentials.
16.3 Accord may make certain Marketing Performance Data available for download from and/or viewing in Insight, for billing or other purposes as agreed. Subject always to the confidentiality of Accord's pricing under this Agreement, the Client may use aggregated Marketing Performance Data for its own internal business purposes, provided always that Client shall not resell any Marketing Performance Data or use it to compete with Accord.
16.4 The Client agrees that, notwithstanding anything else in this Agreement, Accord may make use of aggregated and/or anonymised Marketing Performance Data for its own business purposes (for example to show industry patterns and for research that Accord may publish from time to time).
(a) provide clear and comprehensive information on all Websites about the purpose of cookies used on such Websites in connection with the Services (as detailed in Clause 17.2); and
(b) immediately (i.e. as soon as the user arrives at the applicable Website) obtain each Website user's consent to the storing or accessing of information on a Website user's device using cookies, subject to Clause 17.4.
Type of Cookie Issuer Purpose
Rakuten Attribution (DC Storm)
To monitor performance of digital advertising campaigns.
To prevent users from seeing the same ads too frequently and to show more relevant advertising.
Rakuten Attribution (DC Storm)
To understand and improve Website user experience and conversion.
17.3 Accord works with the Doubleclick platform (the "Platform") in the delivery of advertising. The Platform:
(a) uses unique cookies to identify web browsers and to store data for advertising purposes, including interest-based advertising;
(b) uses unique cookies to store ad delivery and reporting data, such as, for example, which ad was shown, the number of times a particular ad has been shown, and how recently an ad has been shown to a particular web browser;
(c) uses unique cookies to track users' responses (clicks and conversions) to ads purchased on the platform;
(d) uses non-unique cookies for server load-balancing and similar technical purposes;
(e) uses non-unique cookies to store users' opt-out choices.
is designed to use only non-Personal Data, and DoubleClick has contractual provisions that prohibit clients of the Platform from associating Platform cookies with Personal Data.
Rakuten Attribution (DC Storm) Cookie Names and Purpose
Non-cross domain tracking: first-party cookies
Non-cross domain tracking uses first-party cookie only. These cookies are written in the domain of the site being tracked.
|_#srchist||Stores the history of traffic sources the user has arrived to the site by||1000 days|
|_#sess||Stores information about the session||1000 days|
|_#vdf||Stores the visit definition – ts type, number of visits, expiry||1000 days|
|_#uid||Stores a user identifier (only within a site)||1000 days|
|_#slid||Unique sale ID||1000 days|
|_#clkid||Unique identifier for a click generating a landing||1 year|
|_#lps||Flags that the last page was secure and therefore has no referrer||20 min|
|_#tsa||Stores the referrer details to avoid duplicate Landing events||10 min|
|_#env||Flags whether the environment variables (screen size, browser etc) need to be collected again||30 days|
Cross domain tracking: third-party cookies
Cross domain tracking uses third-party cookies to enable spanning of domains. The availability of third-party cookies is tested – if not available a first-party cookie is used instead, with reduced tracking ability.
|stc[site id]||This is the third-party cookie used to store all the other cookie data in concatenated form. The Cookie’s name has the site ID in it.||1000 days|
|_#nxd||This is a first-party cookie used when access to the third-party cookie is blocked. It stores the data similarly to the _#stc cookie.||1000 days|
|_#lps||Indicates whether or not the last page was secure (HTTPS) and we use this to help determine traffic sources as the Referrer is always empty on a page browsed immediately after a Secure Page||20 Minutes|
|_#tsa||Helps to identify and remove duplicate traffic sources||10 Minutes|
Please be mindful that you may also need to provide details of the use of certain other cookies called by tags within the Storm Tag Manager.
Doubleclick cookies information - https://support.google.com/adsense/answer/2839090
17.5 The Client hereby indemnifies and keeps Accord indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by Accord, its group companies and contractors due to any failure by the Client to comply with this Clause 17.
18.1 Where Services include website, and/or database hosting, Accord shall use its reasonable endeavours to ensure that such website and/or database remains available for the uptime agreed with the Client. However, Accord is unable to guarantee availability of any website or database it may agree to host.