Terms and conditions
FOR CUSTOMERS – PRINT, DIGITAL AND EMAIL
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions):
Booking Form: the Company’s prescribed form for booking advertisements, inserts, sponsorship or third party content in print, digitally or through email in the Product, or List Rentals as submitted by the Company to a prospective Customer.
Company: shall mean such company as is described as the contracting company on the Booking Form.
Copy Deadline: the deadline as shown on the Booking Form.
Customer: a person that places an Order, including, in the case of an Order for a List Rental where an order is placed via a broker/direct mail agency/ computer bureau or other agent on behalf of the Customer, the broker/ agency/ bureau or other agent.
Force Majeure: an event beyond the reasonable control of the Company, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or of any other party), act of God, government actions, war, riot, hostilities (whether war be declared or not), armed conflict, terrorist attack, terrorist activity, nuclear, chemical or biological contamination, sonic boom, civil commotion, invasion, revolution, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, power failure, breakdown of plant or machinery, fire, flood, storm, disease, epidemic or default of suppliers or subcontractors.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in getup, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
List: a list containing Personal Data (as defined in the Data Protection Act 1998) to be supplied by the Company as specified in the Order (or any part of such list).
List Rental: the provision of a List(s) by the Company to a Customer.
List User: the person named on the Booking Form who intends to use the List to promote its goods or services.
Material: any content, including images, artwork, inserts and videos (including, unless stated otherwise, Prepared Videos), provided by the Customer in any format, directly or indirectly, for inclusion in one or more services to be provided by the Company including e-mail advertising, print or digital display, services and recruitment advertising, event advertising, the supply of articles or press releases, sponsored editorial or sponsored pages or essays, sponsorship materials, white papers, webinars and any other type of material whether narrative or otherwise advertising the Customer, its products, services and/or expertise.
Order: an order to run advertisements, inserts or sponsorship in print, digitally or email in the Product or a List Rental, which comprises the terms set out on the Booking Form and these Conditions.
Package: the placing of an Order to be met by the Company in more than one medium.
Page Impression: a measurement of responses from a web server to a page request from the User’s browser, which is filtered from automated activity and error codes, and is recorded at a point as close as possible to the opportunity to see the page by the User.
Prepared Video: a video prepared by a Sales Partner Production Company.
Product: a magazine (print or digital), email newsletter, eZine (including versions of such in PDF format or available as an application on a mobile device or tablet) or webinar or website owned/licensed and published/operated by the Company, as detailed on the Booking Form.
Sales Partner Production Company: a company that has entered into an agreement from time to time with the Company to produce advertising videos for Customers.
Start Date: the start date(s) of any campaign(s) to which the Order relates as shown on the Booking Form.
Tenancy: exclusive presence of one advertiser or sponsor on a Company website page or a section of a Company website.
Total Price: shall have the meaning given to it in clause 3.3.
User: any person using a digital service (including via a mobile device or tablet) operated by the Company on which the Customer has placed an advertisement or sponsored a Product.
User Data: data or information in any format supplied to the Company by a User including but not limited to data supplied in response to Material.
VAT: value added tax chargeable under English Law for the time being and any similar additional tax or where relevant the equivalent tax chargeable under the law of a relevant jurisdiction.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Words in the singular shall include words in the plural and vice versa.
1.4 A reference to in writing excludes fax, e-mail or text message.
1.5 Where the words include(s) or including are used in these Conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.6 Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time.
2.1 The completion by the prospective Customer of either of the below will constitute an acceptance of the booking by the Customer upon these Conditions:
2.1.1 confirmation to the Company of agreement with the content of the Booking Form in a manner specified by the Company; or
2.1.2 issue of a purchase order number to the Company instead of but relating to the Booking Form.
2.2 Subject to clauses 2.4 and/or 2.5 below, no terms other than those set out on the Booking Form submitted and in these Conditions shall apply to the Order and no terms set out in any purchase order or any other documentation issued by the Customer shall apply to the Order, whether supplied by the Customer before or after the issue of the Booking Form.
2.3 In the event of a dispute or disparity between these Conditions (and in the case of a Package the Additional Conditions) and any provision of the Booking Form the provisions of the Booking Form shall prevail.
2.4 If a Package includes both print and digital display the following shall apply:
2.4.1 In the event of a cancellation or alteration of all or a part of an Order by the Customer the Company shall use its discretion to allocate any charge made under clause 4 of these Conditions between the constituent parts of the Package. Such charge shall take account of any Package discounts given by the Company at the time of the Order.
2.4.2 In the event of a cancellation or alteration of all or a part of an Order by the Company it shall use its discretion to allocate any refund made between the constituent parts of the Package. Any such refund shall take account of any Package discounts given by the Company at the time of the Order.
2.5 If a Package includes a medium other than either print or digital display the following shall apply:
2.5.1 the conditions applying to that other medium shall apply to the relevant part of the Order (Additional Conditions);
2.5.2 in the event of a cancellation or alteration of all or a part of an Order by the Customer the Company shall use its discretion to allocate any charge made under either clause 4 of these Conditions and/or the relevant terms of the Additional Conditions between the constituent parts of the Package. Such charge shall take account of Package discounts given; and
2.5.3 in the event of a cancellation or alteration of all or a part of an Order by the Company (including in respect of an event a change of venue or date) the Company shall use its discretion to allocate any refund made between the constituent parts of the Package. Any such refund shall take account of Package discounts given.
2.6 The Company will provide the services set out in the Order in accordance with the terms of the Order.
3.1 All bookings by Customers must be made on the Booking Form.
3.2 Payment may be made by any method accepted by the Company, and notified to the Customer, from time to time. If payment is by credit card the full amount due (including VAT) (the “Total Price”) will be invoiced by the Company on receipt of the Booking Form and collected by credit card in the amounts and with the frequency outlined in the credit card payment schedule sent to the Customer shortly after the Booking Form.
3.3 If payment is by any other method the Total Price of the booking is due no later than 30 days after the invoice date.
3.4 If any payment is overdue from a Customer the Company reserves the right (in its sole discretion and without limiting any other remedies it may have under these Conditions):
3.4.1 to charge interest on the overdue sum in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and/or
3.4.2 to levy a reasonable charge to reflect the additional administrative costs involved in collection of such debts, together with the costs and charges of any debt collection agency used; and/or
3.4.3 to cancel such Order or accept the action of such Customer as cancellation of such Order; and/or
3.4.4 to suspend performance of any or all Orders such Customer has placed.
3.5 In the event of the Customer being unable to pay its debts as a result of becoming the subject of insolvency, administration or bankruptcy or similar orders, notices, proceedings, resolutions or arrangements or by making a composition with its creditors or going into liquidation or being under the appointment of a receiver or administrator (or any analogous events in any other jurisdiction), the Company reserves the right to suspend such Customer’s Order without being under any liability to refund or abate any charges paid or due hereunder.
4. CANCELLATION OR ALTERATIONS OF AN ORDER
4.1 If the Customer wishes to cancel an Order, or to alter any Start Date(s), such request must be received in writing by the Company a minimum of five weeks prior to the Copy Deadline or Start Date. The Customer will be liable to pay in full for the Order where the Customer fails to comply with clause 4.1.
4.2 Series discounts apply only to Orders completed within one year of the first advertisement being run. If the Customer cancels the Order before the series is complete then a surcharge will be made for advertisements already run at a discount, which will be an amount that represents the difference between the discounted charge and the rate card charge for a single advertisement for each advertisement that has run.
4.3 In the event that copy for advertisements is not supplied by the Customer and advertisements are not therefore run for a series within the contractual period, then the Company reserves the right to charge a surcharge for advertisements already run at a discount, which will be an amount that represents the difference between the discounted charge and the rate card charge for a single advertisement for each advertisement run.
4.4 The Customer remains liable for full payment where Material fails to be delivered to the Company by the agreed date.
4.5 The Company reserves the right to refuse, withdraw, suspend or cancel the booking of any Order at its complete discretion. Unless such refusal, withdrawal or cancellation is due to an event of Force Majeure, or by reason of the breach of these Conditions by the Customer, the Company will refund to the Customer all money it has paid to the Company in respect of such Order. This refund is without prejudice to any claim that may be made by the Company under these Conditions.
4.6 Where a Customer is renting a List and either:
4.6.1 cancels an Order less than 7 days prior to its delivery date (as specified on the Booking Form); or
4.6.2 fails to make a payment under clause 3 on the due date, The Customer will be liable to pay in full for the Order or where the Customer has already made payment the Company will not be liable to make a refund of such payment.
5. LIMITATION OF LIABILITY
The Customer’s attention is particularly drawn to the provisions of this clause.
5.1 Other than as expressly stated in these Conditions or the Booking Form, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
5.2 Nothing in these Conditions limits or excludes the liability of the Company for death or personal injury resulting from negligence or fraud or fraudulent misrepresentation.
5.3 Subject to clauses 5.1 and 5.2, the Company shall not be liable for:
5.3.1 loss of profits; or
5.3.2 loss of business; or
5.3.3 depletion of goodwill and/or similar losses; or
5.3.4 loss of anticipated savings; or
5.3.5 loss of goods; or
5.3.6 loss of contract; or
5.3.7 loss of use; or
5.3.8 loss due to corruption of data or information; or
5.3.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses
5.3.1 to 5.3.9 above (inclusive) each being “Losses”.
5.4 Subject to clauses 5.2 and 5.3, the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of any Order shall be limited to the Total Price.
5.5 In addition to the above, and in respect of Customer’s who are renting Lists, the List is supplied on an “As Is” basis and the Company does not make any representations or warranties in respect of it, including representations or warranties relating to its timeliness, currency, continuity, accuracy, completeness, merchantability, or fitness for a particular purpose.
6. WARRANTIES AND INDEMNITIES
6.1 The Customer warrants that the Material is not objectionable, including that it is not defamatory, libellous, obscene, threatening, untrue or in breach of the law or advertising industry codes of conduct or any third party rights, including third party Intellectual Property Rights.
6.2 The Customer warrants that its Material is of good editorial quality. Material that in the reasonable opinion of the Company is not of good editorial quality or has spelling or other mistakes may be returned to the Customer for amendment or additional editorial input. Refusal to amend may at the Company’s option lead to the Company refusing to publish the Material and be deemed by the Company to be a breach of these Conditions and clause 7.1 shall apply.
6.3 The Customer warrants that its Material, including e-mail attachments, is free from computer viruses and has been checked by a recognised virus-checking agent.
6.4 In respect of List Rentals the Customer undertakes and warrants that, unless otherwise agreed with the Company in writing or as specified on the Booking Form:
6.4.1 the List will be used for a single emailing use only;
6.4.2 the List will not be copied, retained after its proper use, disclosed to any third party (other than the List User if not the Customer), re-sold or re-used in any way other than under these Conditions.
6.5 In the event that the Customer is not the List User the Customer shall procure that the List User shall abide by the undertakings in this clause and shall remain liable for the List User’s breach of any of the undertakings.
6.6 The Customer shall indemnify the Company, its employees and agents in respect of all or any liability, costs, expenses or losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury or death of any person and loss of opportunity to deploy resources elsewhere) incurred or sustained by the Company arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Conditions except where incurred or sustained by the Company as a result of any damage or injury caused by the Company or official contractors appointed by the Company.
6.7 For the purpose of this clause 6, references to a Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Conditions include any such fraud, negligence, failure to perform or delay in performance by the Customer’s employees, agents and contractors.
7.1 If the Customer is in breach of any material terms of these Conditions or any Additional Conditions and the breach is not capable of remedy, or if the breach is capable of remedy the Customer has failed to remedy such breach within 7 days of receipt of notice so to do, the Company shall have the right to give notice to the Customer that this agreement is terminated.
7.2 Any such termination shall not oblige the Company to return to such Customer any amounts already paid to the Company in respect of the booking or relieve such Customer of its obligation to pay all amounts outstanding in respect of the booking to the Company.
7.3 On termination of this agreement, where a Customer is renting a List, and that List has already been delivered to the Customer, the Customer shall refrain from making any further use of the List and, at the Company’s discretion:
7.3.1 return the List to the Company; or
7.3.2 destroy the List.
8. ADVERTISEMENTS AND INSERTS
8.1 The supply of Material for advertisements or inserts by the deadlines specified is the sole responsibility of the Customer and time shall be of the essence for this purpose. In the event of such Material and relevant instructions not being received by the Company by the applicable deadlines the Company reserves the right in its absolute discretion
8.1.1 to repeat standing Material or otherwise to determine the Material to be published;
8.1.2 to charge the Customer for any extra costs directly incurred by the Company as a result of late receipt; and/or
8.1.3 to exclude the Customer’s Material.
8.2 In the event that:
8.2.1 no Material is supplied by the deadlines and there is no standing Material; or
8.2.2 the Material supplied does not conform with these Conditions, and can not be made to conform, and therefore can not be used by the Company, the Total Price remains payable.
8.3 The Company shall be entitled to assume that proofs sent to the Customer for corrections that are not returned to and received by the Company by the relevant copy deadline are correct.
8.4 Material must conform strictly to the Company’s requirements and any additional work by or on behalf of the Company required to make it conform will be charged to and payable by the Customer on the Company’s first written demand.
8.5 The Customer warrants that its advertisements will comply with the British Code of Advertising and Sales Promotion and all relevant legislation and industry guidelines and will not breach any third party rights or be otherwise unlawful and indemnifies the Company against all costs, damages and losses arising from any breach.
8.6 The Customer shall be responsible for the insurance of all Material delivered by it to the Company, such Material shall at all times remain at the risk of the Customer and the Company does not accept any liability for its loss or damage.
8.7 The Company reserves the right to destroy at any time all Material which has been in its or its agents’ custody for at least 6 weeks from the last date of use without giving further notice to the Customer.
8.8 The Company will not be liable for any loss, costs, expenses or damage (whether direct or consequential) resulting from the delay or the failure of any inserts or advertisements to appear on the date(s) specified or any delay in its appearance from the delay or failure of any issue of a Product to appear, or from the discontinuance or suspension of a Product.
8.9 In the case of sponsors, any schedule of agreed sponsorship attached to the Booking Form by the Company shall form part of these Conditions.
8.10 The size and positions of any Customer’s logos on signage, advertisements, printed materials, websites and electronic communication will be at the sole discretion of the Company.
8.11 ln no circumstances does the placing of an Order confer the right to renew on similar terms.
8.12 The Company reserves the right to increase advertisement and sponsorship rates at any time save in respect of Orders already confirmed.
8.13 All advertisements are accepted subject to the space being available in a Product.
Additional conditions applicable to Orders relating to print Products:
8.14 Where the Customer has booked an insert into a print Product, the Customer will remain liable for full payment if the inserts are not delivered to the Company at the agreed time and place for approval and insertion. If the insert when delivered exceeds the agreed weight the Company retains the right to charge extra costs arising from this weight increase to the Customer.
8.15 Should the Company introduce a reader enquiry or similar service for the benefit of its readers, the Company shall not be liable if it fails to pass such enquiries to the Customer or its agent(s).
8.16 For all mail order advertising, the Customer must complete and sign a mail order advertisement undertaking in the form requested by the Company.
Additional conditions applicable to Orders relating to digital Products and services:
8.17 The Company will ensure publication of the Material on the relevant digital services and will distribute it through e-mailed services for the term of the campaign as defined in the Booking Form provided that such distribution is in compliance with the law.
8.18 The Company will insert a hypertext link, as provided by and agreed with the Customer, from the Material to the Customer’s website, or such other website as has been agreed.
8.19 The Company agrees not to amend or edit the Material without the Customer’s consent other than for the purposes of organising or classifying the Material for the relevant digital Product.
8.20 The Company will use its reasonable endeavours to maintain technical access for Users to the relevant digital Product. However, the Company gives no warranty that access to the relevant digital Product will be uninterrupted or error free.
8.21 The Company will use its reasonable endeavours to promote the relevant digital services effectively and generate User traffic.
8.22 Images and other Material must be supplied in formats acceptable to the Company. These will be specified by the Company from time to time.
8.23 Material must conform to the Company’s requirements set out in these Conditions and the cost of any additional work involved will be charged back to the Customer.
8.24 Where the campaign is based on the number of Page Impressions having been received, this will be verified by the Company using a third party monitoring service and the Customer agrees to abide by the results of such third party monitoring service, subject to a margin of error of no more than 10%.
8.25 The Company expressly does not make any representation or give warranty nor does it accept any liability for the content, accuracy legality, currency, compliance and/or integrity of User Data; and/or the suitability of a User or reader of a publication for the Customer’s products or services.
8.26 The Company expressly does not make any representation or give any warranty that User Data is virus-free and will not accept any liability therefore.
Additional conditions applicable to Orders relating to digital Products where the Customer is using a Prepared Video
8.27 Where the Customer is using a Sales Partner Production Company to produce a Prepared Video the Customer:
8.27.1 agrees to enter into a production agreement with that Sales Partner Production Company;
8.27.2 acknowledges that the Company is not a party to the agreement referred to at clause
8.28.1 and that the Company has no obligations or liability whatsoever in respect of the production of the Prepared Video; and
8.27.3 accepts that the Prepared Video will only be published on the relevant digital services when delivered to and accepted by the Company from the Sales Partner Production Company.
8.28 Where the Customer is using a Sales Partner Production Company to produce a Prepared Video the Company:
8.28.1 agrees to include the Prepared Video on the relevant digital Product and will insert a hypertext link, as provided by and agreed with the Customer, from the Prepared Video to the Customer’s website, or such other website as has been agreed between the Company and the Customer;
8.28.2 agrees not to amend or edit the Prepared Video without the Customer’s consent other than for the purposes of organising or classifying the Prepared Video for the relevant digital Product;
8.28.3 will use its reasonable endeavours to maintain technical access for Users to the relevant digital Product. However, the Company gives no warranty that access to the relevant digital Product will be uninterrupted or error free; and
8.28.4 will use its reasonable endeavours to promote the relevant digital services effectively and generate User traffic.
8.29 The terms at clauses 8.27 and 8.28 supersede those at clause 8.14 to 8.26 inclusive
Additional conditions applicable to List Rentals
8.30 Prior to the release of any List by the Company a sample of the material to be emailed must be submitted to the Company for approval. The Company shall notify the Customer of its approval or decline its approval within five working days of submission by the Customer. The Company may withhold approval in its sole discretion and without explanation. In that case the Company will make a full refund of all amounts paid by the Customer.
8.31 In the event that the Customer is not the List User the Customer must disclose the name and address of the List User prior to the release by the Company of the List.
8.32 The Customer accepts that the quantities of names quoted or appearing on the Booking Form may be approximate only since Lists are constantly updated and revised.
8.33 A small percentage of “sleeper names” will be included in the List to enable the Company to monitor the Customer’s compliance with these Conditions.
8.34 Whilst the Company will use reasonable endeavours to ensure that the List is delivered on time, time shall not be of the essence.
9.1 The Customer hereby irrevocably grants to the Company the royalty free right and licence to use, reproduce, publish, store, distribute and display the Material worldwide in accordance with these Conditions or to satisfy the Company’s rights and obligations thereunder.
9.2 No rights in the Customer’s Material shall transfer to the Company under these Conditions.
9.3 The Customer warrants and represents that it owns the Material or has all necessary rights and permissions to grant the licence at clause 9.1.
9.4 The Customer grants irrevocable permission and acknowledges that its Material may be used to compile statistical information on the Customer and may in addition be used by the Company to update details of the Customer on the Company’s products and services databases.
9.5 For the purposes of clauses 9.3 and 9.4, Material shall not include Prepared Videos.
10. OTHER ISSUES
10.1 The relevant Booking Form, together with these Conditions, and if a Package any Additional Conditions as defined in clause 2.4 and/or clause 2.5, constitute the whole agreement and understanding of the parties and supersede and extinguish any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
10.2 Save for those expressly stated in these Conditions, no rights or obligations in respect of the Company’s Intellectual Property Rights (whether registered or unregistered and including all applications for and renewals or extensions of such rights) are granted to the Customer or to be implied from these Conditions.
10.3 The Company may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under this Agreement. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the Company’s prior written consent.
10.4 Failure by the Company to insist upon strict performance by the Customer of any of these Conditions shall not operate as a waiver or otherwise release or in any way affect the liability of the Customer under these Conditions.
10.5 The Company shall be under no liability for any failure, delay or omission on its part or resulting from any event of Force Majeure.
10.6 The Contracts (Rights of Third Parties) Act 1999 and any legislation amending or replacing this Act shall not apply in relation to an Order and nothing in an Order shall confer on any third party the right to enforce any provision of the Order.
10.7 Each party shall procure that its employees, agents and sub-contractors shall at all times act in an ethical business manner and shall not at any time contravene or breach the provisions contained in the Bribery Act 2010 or any legislation relating to anti-bribery. Breach of this clause will be regarded as a material breach of this agreement that cannot be remedied and which shall allow the non-defaulting party to immediately terminate the agreement by written
notice to the other party.
10.8 Unless expressly stated otherwise all charges set out in this Agreement and any related documents are exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable for the supply of the goods / services in question.
11. LAW APPLICABLE
11.1 These Conditions (including any Additional Conditions) and the Booking Form and any dispute or claim arising out of or in connection with them or their subject matter will be governed by English Law and subject to the exclusive jurisdiction of the English Courts.