Marketing Retainer Terms and Conditions
Definitions
Definitions within this Contract refer to the below:
‘The Consultant’
Company name: Geek Designs Limited
Company number: 09031820
Registered address: 76 Papyrus Road, Peterborough, England, PE4 5BH
Correspondent Address: 76 Papyrus Road, Peterborough, England, PE4 5BH
‘The Client’
The Client is detailed in the attached Statement of Work; under the campaign Client Name.
The part confirms the Client details on the signing page of this Contract.
‘Statement of Work’
The Statement of Work is the initial page, or pages, of this document which details the services The Consultant will provide and associated costs.
Agreement
The Consultant will perform a range of services as stated in the above Statement of Work. These services are designed to boost the social media and digital marketing presence of the Client.
The Client will pay the Consultant for the services stated in the Statement of Work by paying a monthly fee. Payment is due within 14 days of the invoice being emailed to the Client.
This agreement is binding for an initial period of six (6) months, and will continue in one (1) month increments thereafter so long as both parties should agree.
Terms
1. Duration
1.1 The Consultant will render services to The Client for an initial period of six (6) months.
1.2 The Consultant may have thirty (30) days to establish a presence on behalf of The Client across all agreed upon platforms. During this time, The Consultant will work to establish what techniques will work best for The Client. After thirty (30) days, The Consultant will become responsible for the monthly management portion of the agreement, as stated in the above Statement of Work, whereby The Consultant must achieve a quota of social interactions on behalf of The Client.
1.3 If The Client delays access to the social media platforms or the sharing of brand assets which allow work to commence The Consultant will not be held responsible for any delays in the optimisation of social media platforms or the commencement of work.
1.4 In the event that The Consultant does not meet the specified quota or is unable to optimise The Client’s presence on social media, either party can seek early termination of this Contract or Any delays to the agreed start date and resulting below quota levels of management will see the first quota of management pro-rotated accordingly within the monthly invoice cycle.
1.5 In the event that The Consultant is unable to gain access to or optimise The Client’s social media presence or website, either party can seek early termination of this Contract, with exit fees reflecting the time taken by The Consultant to discover they are unable to commence work. Time will be charged at the “Agency Rate” detailed in Section 3.3.
1.6 Once the initial six (6) months have transpired, either party may opt to conclude the agreement without penalty. Notice of thirty (30) days to conclude Contract must be given by either party within the first seven (7) days of month six (6). Otherwise, the two parties may extend the existing agreement in one month (1) increments so long as both parties shall agree. If either party wishes to terminate the Contract at any point after the initial six (6) month period, one (1) month written notice must be given.
1.7a Should The Client choose to terminate the Contract without cause prior to the end of the initial six (6) month period, The Client must present The Consultant with a written notice of termination and payment equal to the amount to be paid to the Consultant over the duration of the initial six (6) month contract period.
1.7b If The Client wishes to change the details of the services agreed in the Statement of Work, The Consultant reserves the right to change the costs and time scales within the Contract. The Consultant will send a new proposal detailing new services and associated costs. If both parties accept the new offering, a new Contract will be issued. If The Client does not accept the revised proposal, the changes will not be implemented and the existing Contract will remain in place.
1.8 Unless specifically stated in the proposal, The Consultant does not commit to working exclusively with The Client.
1.9 The Consultant ensures the services detailed in the Statement of Work will be performed in a professional and workmanlike manner. All work under this agreement shall be The Consultant’s original work. None of the services, inventions or product provided will infringe on or violate the intellectual property of any person or entity (including, without limitation, The Consultant).
1.10 The Consultant shall comply with all applicable laws and Company safety rules in the course of performing the services detailed in the Statement of Work.
1.11 The Consultant reserves the right to terminate this Contract within the initial six (6) month period, in the event that the professional relationship between the parties is not successful.
2. Client Obligations and Consultant Obligations
2.1 The Consultant will undertake the following, as stated in the Statement of Work section of this Contract:
2.2.1 Establish and/or optimise the Client’s presence on the specified digital marketing platforms.
2.2.2 Meet the specified quotas of ongoing management.
2.2.3 The Consultant will provide The Client with the specified reports appropriate to the complexity and depth of work carried out by the consultant.
2.3 The services cited in the Statement of Work represent the services provided by The Consultant. The Consultant may elect to provide additional services when deemed necessary. Should this occur, The Client will not be billed for additional services. However, the performance of additional services in one period does not obligate The Consultant to provide such additional services in future periods.
2.4 The Client will have a lead point of contact stated as “Account Manager” and introduced during the onboarding process. The Client should communicate all needs relating to the services with the Account Manager. From time to time, it may be necessary to liaise with a different member of the team to cover absence or holiday. This will be explained when the situation arises.
3. Payment
3.1 The Consultant will establish and/or optimise The Client’s digital marketing presence across the agreed-upon platforms for a one-time charge, as stated in the Statement of Work under “set up fee”. This work will be completed by the end of the first month of the contract period, unless there are extenuating circumstances such as technical issues. Any technical problems or other factors preventing The Consultant from completing this work must be communicated to The Client with updated expected completion times.
3.2 The Consultant will manage The Client’s digital marketing for a recurring monthly charge, as stated in the Statement of Work section of this Contract. This charge will be invoiced in arrears on the last working day of each month and due fourteen (14) days after the invoice date.
3.3 The Consultant can offer a complete range of additional marketing services at the request of The Client. These additional services will either have a package price disclosed on request or charged at an hourly rate known as “Agency Rate”.
3.4 Additional Rush Work will be charged at an hourly rate of £150 + VAT per hour, per member of staff. Rush Work refers to services required within one (1) day, and those required Out of Hours which fall outside of the normal business hours of 8:30am to 5:00pm Monday to Friday, excluding UK Bank Holidays.
3.5 Retainer pricing is calculated at the “Retainer Rate” of £62.50 per hour + VAT, within the price stated on the Statement of Work, The Consultant will cover all elements of the ongoing relationship, including communications, meetings, reporting, and carrying out the described services. If the hours taken to honour this Contract exceed the expected time for a consistent period of time of two (2) months, The Consultant reserves the right to re-issue the Contract at a higher rate. To do this The Consultant must;
(i) show timesheet evidence
(ii) give one (30) Days written notice
(iii) issue a new Contract
The Client can accept the new Contract, or terminate the existing Contract with (30) Days’ notice of the Consultant’s communication of price increase.
3.6 The Client agrees to pay for any additional services provided by The Consultant that are not specified in the Statement of Work. These additional services will be charged in accordance with the rates stated in Section 3.3 and on Client agreeance.
3.7 The Consultant will accept payment via BACS, paid into the following account:
Geek Designs Limited
Bank Details: HSBC
Sort Code: 40-36-15
Account number: 72617676
All payments are to be made by bank transfer only, the only exception to this is if the client wishes to set up a direct debit through Geek’s portal.
3.8 In the event that The Client fails to pay The Consultant by 09:00am on the fifteenth (15th) day for two consecutive invoice periods, resulting in two invoices outstanding, The Consultant will have the right to terminate all services with immediate effect. Once payment for the outside periods has been made in full, including any accrued interest detailed in Section 3.9, The Consultant will consider if they want to resume services with The Client. It is at The Consultant’s discretion if services resume and it cannot be guaranteed.
3.9 All late payments will be subject to the Late Payment of Commercial Debts (Interest) Act 1998, which allows a statutory rate of 8% interest above the base rate plus a fixed sum per debt and reasonable recovery costs.
3.10 Should The Client miss two (2) consecutive invoice periods, The Consultant reserves the right to invoice for the full remainder of the contract period upfront and will not resume any further work until this sum has been paid.
4. Account Access & Authorisation
4.1 The Consultant is authorised by The Client to assume the identity of The Client in all digital marketing interactions on the internet including, but not limited to, status updates, blog posts, online forum discussions and message board posts, comments, responses to user comments, and emails.
4.2 The Client will demonstrate this authorisation by;
(i) allowing The Consultant admin control to the existing digital marketing platforms
(ii) providing all passwords for existing digital marketing platforms
(iii) granting The Consultant access to The Client’s Google Analytics
(iv) grant access into any other forms of reporting software
4.3 The Consultant will hold the Client’s URLs, usernames, and passwords in confidence and to regulations set in the Data Protection Act 2018. The Consultant will not share this information under any circumstances, nor will The Consultant sell this information to a third (3rd) party. The Client and The Consultant acknowledge that for the purposes of the Data Protection Act 2018, The Client is the data controller and The Consultant is the data processor. The Consultant and The Client will comply with the Data Protection Act 2018.
4.4 Upon termination of the Contract, The Consultant will pass back the latest passwords and access information, before destroying all copies of the passwords held. This will be completed within two (2) weeks after the end of the termination period.
5. Rights to Created Content
5.1 The Client will retain the right to all content created by The Consultant for The Client, while under Contract, ad infinitum. However, The Client may not distribute for profit any content created by The Consultant for The Client, without the written consent of The Consultant.
5.2 The intellectual property rights on the content created by The Consultant, shall pass into the ownership of The Client on receipt of payment for the corresponding invoice. However, The Consultant will retain the right to use any and all content created by the Consultant for The Client, for the purpose of
(i) providing samples of The Consultant’s work or
(ii) instruction – including, but not limited to, presentations, lectures, webinars, and published material in any medium.
5.3 All deliverables will be approved by The Client. The Client is responsible for promptly checking all deliverables sent for approval. All deliverables will be sent in a timely manner starting during the onboarding process. The Consultant cannot be held responsible for any delays, or not meeting the content requirements details as stated in the Statement of Work, caused by delays in Client feedback. Furthermore, no pro-rata or discount will be provided on the agreed rate, detailed in the Statement of Work or Section 3.3.
5.4 The Client can approve or request changes to deliverables. The Client will give feedback on all rejected deliverables allowing The Consultant to make the corresponding edits. The Client is allowed two (2) changes to deliverables within the fees stated in the Statement of Work, any additional changes will be charged at the agency rates detailed in Section 3.3. Once The Client has signed off on a deliverable, any further changes will incur extra charges detailed in Section 3.3 of this Contract.
5.5 The Consultant will not be responsible for any errors or other problems with a deliverable that has been approved by The Client.
5.6 The Client may give permission for The Consultant to publish deliverables with approval. This permission must be given in writing. Once permission has been granted, The Consultant will not be responsible for any errors or other problems with a deliverable. Consultant permission to publish without approval can be revoked by The Client at any time.
5.7 Information will be required from The Client to allow The Consultant to create content. The Client acknowledges that delays in receiving this information will result in the delay or prevention of content being created, there will be no price reduction for delays caused by this.
5.8 The Client must provide images and design work to The Consultant. The Client must have permission to use these images in all marketing materials or the images must be owned by The Client. In the case where permission has been granted, The Consultant will credit the original photographer whenever possible, when made aware that they must do so.
5.9 In the case when images have been provided without copyright or permission to share, the Client takes full responsibility, and The Consultant will not be held liable for any damages.
5.10 From time to time, The Consultant may need to use additional images, these will be found from a royalty-free image bank and will be under free to use commercial licence.
5.11 From time to time, The Consultant may take additional photography for The Client. These images will be of a high resolution and clarity for use across the web and not have a fixed quota. Should The Client want this option, The Client must provide stock for photography at no cost to The Consultant. The Client will be responsible for sending stock at their own costs. Stock will not be returned. Should this service occur, The Client will not be billed for this additional service. However, the performance of these services in one period does not obligate The Consultant to provide such additional services in future periods.
6. Access to Client Information
6.1 In order to accurately determine ROI (Return on Investment), The Consultant may, from time to time, ask for financial and customer information from The Client. Requests will be made directly to The Client in person, over the phone, or in writing. After receiving a response to a given query, The Consultant will extract any relevant data, then destroy any electronic record.
6.2 The Consultant will not share this information under any circumstances, nor will The Consultant sell this information to a third (3rd) party.
7. Liability Waiver
7.1 Nothing in this agreement shall limit or exclude the liability of either party for any matter in respect of which it would be unlawful to exclude or restrict liability.
7.2 Establishing a digital marketing presence and initiating a two-way flow of communication between The Client and the public can have unintended consequences on The Client’s reputation. Should this occur, The Client waives its right to hold The Consultant responsible for any damage and/or liability that may arise from The Consultant’s actions on behalf of The Client.
7.3 If, at any time, The Client does not agree with actions taken by The Consultant on its behalf, it must notify the Consultant in writing. If the Consultant receives such a communication, The Consultant will remove all unwanted content and post a retraction and apology across all affected platforms within twenty-four (24) hours.
7.4 If, at any time, The Consultant does not agree with actions taken by The Client during representation, it must notify The Client in writing within twenty-four (24) hours, giving reasons for this non-agreement and advising alternative action. The Client does not have to agree with the advice, however The Client cannot hold The Consultant responsible for any repercussions from content The Consultant deems as inappropriate.
7.5 The Consultant will not be held liable for damages, direct or indirect losses, actions or claims that The Client incurs.
8. Service Interruption
8.1 Either party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, laws, proclamations, edits, ordinances or regulations, riots, earthquakes, floods, explosions, other acts of nature, bereavement or unexpected severe health concerns and hospitalisation. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties respective obligations hereunder shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty (30) days, either party shall have the right to terminate this Agreement upon fifteen (15) days prior written notice to the other party.
9. Termination
9.1 Once the initial six (6) months have transpired, either party may opt to conclude the agreement without penalty, with one (1) month written notice of termination. Otherwise, both parties may extend the existing agreement in one (1) month increments so long as both parties shall agree. If either party wishes to terminate the Contract at any point after the initial six (6) month period, one (1) month written notice must be given.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if they have:
(i) has committed a material breach of this Contract unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within fourteen (14) days after a written notice to do so;
(ii) where either party takes or has taken against it 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), 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;
(iii)where either party is an individual, they take any step or action in connection with being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business;
(iv) if either party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.3 If The Consultant fails to fulfil obligations under this agreement or breach its terms, The Consultant has fifteen (15) days to correct and resolve the breach. If after this time the failure or breach has not been addressed to The Client’s satisfaction, the Client has the right to terminate this agreement immediately.
9.4 If The Client fails to fulfil obligations under this agreement or breach its terms, The Client has fifteen (15) days to correct and resolve the breach. If after this time the failure or breach has not been addressed to The Consultant’s satisfaction, the Consultant has the right to terminate this agreement immediately.
9.5 If the Client behaves in an unprofessional manner at any point The Consultant reserves the right to terminate The Contract with immediate effect. This includes malicious grievance; misleading and deceptive behaviour; slander; bullying; harassment or; any communication deemed as unprofessional towards any member of staff.
9.6 In the case of a material breach which cannot be remedied, both parties have the right to immediately terminate the Contract.
9.7 In the case of immediate termination The Consultant will issue The Client with a final invoice with all work carried out to date. This invoice will be calculated at a pro-rata basis, or at the standard agency rate detailed in Section 3.3.
9.8 In the event of termination, all payments required under this Contract shall become due and immediately payable.
9.9 Upon termination of the Contract The Consultant will;
(i) pass back the latest passwords and access information, before destroying all copies of the passwords held within two (2) weeks;
(ii) collect and deliver all complete content, created until the point of termination, to The Client;
(iii) ensure The Client has full access to all platforms created by The Consultant;
(iv) issue all final invoices.
This will be completed within a timeframe of (30) days after the termination date.
Upon termination of the Contract The Client will;
(i) pay all sums outstanding to The Consultant.
(ii) assist The Consultant with a smooth handover, ensuring all requests for work and additional information are requested while giving notice.
9.10 The Client may at any point approach The Consultant to request ad-hoc services or to re-instate ongoing management. At this point, a new Contract will be issued detailing the new service agreement.
10. Miscellaneous
10.1 The Client is forbidden to make personal contact with any member of The Consultant’s staff either personally or via personal social media channels, without expressed consent from the member of staff in question and The Consultant.
10.2 Under no circumstance is The Client allowed to contact any staff member personally regarding any work matter, all communication must be via The Consultant’s official contact methods of email or phone. Any unapproved contact that is deemed unwanted may result in this Contract being terminated.
10.3 The Client is forbidden to offer any member of The Consultant’s team employed or freelance work while the Contract is in place, or for a period of one (1) year after the Contract had ended.
11. Severance
11.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12. Governing law
12.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
13. Jurisdiction
13.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
14. Amendments & Addendums
14.1 This Contract is to be considered complete and final. However, the field of social media and digital marketing is rapidly changing and from time to time, changes may necessitate amendment or addition to this Contract. Should such a need arise, the amendment or addendum must be drawn up as a separate document, signed by both parties indicating their agreement, and a copy of the signed document must be provided to The Client and The Consultant.
15. Entire Agreement
15.1 This Agreement contains the entire agreement and understanding of the parties relating to the subject matter of this Agreement and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.