TERMS OF BUSINESS – ONLINE ADVERTISING
1. EFFECT OF THESE TERMS OF BUSINESS
These Terms of Business apply to all advertisements that are accepted for publication by the Publisher whether or not these terms have been formally agreed in writing by the Advertiser. No other terms shall apply unless in writing signed by duly authorised signatories of both the Publisher and the Advertiser.
These Terms contain the following definitions:
3. PUBLISHER’S RIGHTS AND DUTIES
Publication of an Advertisement is subject to the Publisher’s written agreement. That agreement does not imply that the contents of the Advertisement have been reviewed by the Publisher before publication or that the Publisher accepts that the Advertisement complies with these Terms of Business.
Once an Advertisement is accepted for publication and received in accordance with the Publisher’s requirements, it will be published on the Website in accordance with the Contract including these Terms of Business.
The Publisher does not guarantee any specific positioning of any Advertisement on the Website save for the premier advertiser who will be entitled to select positioning of their Advertisement.
The Publisher has the right at its absolute discretion to decline to publish any Advertisement without giving a reason.
4. ADVERTISER’S DUTIES, WARRANTIES AND INDEMNITIES
4.1 Licence and Materials
Each order for an Advertisement placed by the Advertiser under the Contract constitutes a royalty-free licence to the Publisher to publish the Advertisement referred to in the order. The licence shall continue in effect for the duration of the Contract.
The Advertiser must supply all advertising material in a format requested by the Publisher and in compliance with the Publisher’s requirements with regard to timing, technical details, method of transmission and all other matters. The Advertiser acknowledges that (a) any failure to comply with those requirements will entitle the Publisher to cancel or delay the publication of the Advertisement and (b) any consequent design or technical work undertaken by the Publisher in respect of the Advertisement may attract an additional fee that will be payable to the Publisher.
The Advertiser warrants that:
(1) it has full authority to publish the contents of the Advertisement and to request the Publisher to publish the Advertisement without breaching any contract or infringing the rights of any third party including, without limitation, copyright, trade marks or other intellectual property rights;
(2) it has complied and will continue to comply with all relevant legislation and codes of practice in relation to the Advertisement;
(3) it is fully responsible for the terms of any contract for the sale of goods or services to customers who respond to the Advertisement displayed by the Publisher;
(4) all information supplied in connection with the Advertisement is accurate and complete and does not contain anything which is false, misleading, pornographic, obscene, racist, defamatory or otherwise offensive or unlawful;
(5) in the case of an Advertisement that contains the name, comments or pictorial representation of a living person, that person has given the Advertiser consent in writing for the Advertisement to be used.
The Advertiser further warrants that:
(1) no hypertext link from any Advertisement to the Advertiser’s website will render the Publisher liable to any claim or proceedings nor will there be any link from the Advertisement to any website containing pornographic, obscene, racist, defamatory or otherwise offensive or unlawful material;
(2) the Advertiser will promptly inform the Publisher in writing of any malfunction or any change which would affect the functioning of any link from the Advertisement and in the case of malfunction the Advertiser will promptly take steps to rectify the fault at its own expense; and
(3) no hypertext link from any Advertisement to the Advertiser’s website will affect the ability of any user of the Website to click on the back button on the browser back to the Website.
The Advertiser undertakes to indemnify, and keep indemnified, the Publisher on demand against all expenses, damages and losses of any kind (including reasonable legal fees and expenses and all indirect, consequential or economic loss or damage) incurred by the Publisher in connection with any claims, actual or threatened, of any kind arising from (a) the Advertisement and (b) any material of the Advertiser to which users can link through the Advertisement and (c) any contract entered into for the purchase of the advertised goods or services. The Advertiser further undertakes to notify the Publisher in writing immediately it becomes aware of any actual or threatened claim arising from publication of the Advertisement.
The Publisher undertakes to notify the Advertiser in writing immediately it becomes aware of any actual or threatened claim arising from publication of the Advertisement. The Publisher further undertakes to give reasonable assistance to the Advertiser in defending any claim arising from publication of the Advertisement provided that the Advertiser agrees, in writing, in advance to fully indemnify the Publisher in respect of all legal fees and expenses reasonably incurred by the Publisher.
5. PRICES AND PAYMENT
Advertising rates quoted by the Publisher may be revised at any time and no quotation of the Publisher will be open for longer than 30 days unless otherwise stated in writing.
Prices are exclusive of applicable Value Added Tax which the Advertiser shall pay to the Publisher in addition to the agreed prices.
Any failure to settle any part of any invoice within 28 days from the invoice date will entitle the Publisher to charge simple interest at [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”] per cent p.a. above Bank of England Base Rate on any outstanding balance, from the invoice date until the date that payment is received in cleared funds. In addition, late payment will entitle the Publisher, in its absolute discretion, to cancel any agreed discount which would otherwise be allowable.
Series discounts apply only to orders placed in advance and completed within the period agreed in the Contract. If the Advertiser cancels the publication of the balance of a series of Advertisements, it relinquishes any series discount and the Publisher reserves the right to charge for all Advertisements at the full rate exclusive of discount.
6. LIMIT OF LIABILITY
If the Publisher fails to publish any Advertisement in accordance with the Contract (and that failure is not attributable to any breach of the Contract by the Advertiser), the Publisher’s liability shall be limited (at the option of the Publisher) to either:-
(a) publishing the Advertisement (or a replacement Advertisement if provided by the Advertiser) as soon as reasonably practicable following the period during which the Advertisement was originally scheduled to run; or
(b) refunding to the Advertiser a due proportion of the price paid or, if payment has not yet been made, the Publisher will agree to waive an appropriate portion of the price.
Under no circumstances shall the liability of the Publisher to the Advertiser exceed an amount equal to the fees and expenses payable by the Advertiser to the Publisher.
In no event shall the Publisher be liable for any indirect, special, consequential or economic loss of any kind incurred by the Advertiser including without limitation loss of profits, business, contracts, revenue or goodwill.
7. FORCE MAJEURE
Neither the Advertiser nor the Publisher shall be in breach of these Terms of Business or under any liability to the other for any delay, loss or damage that is attributable to Force Majeure, provided that the party affected (a) informs the other party in writing of the occurrence of Force Majeure, and (b) makes all reasonable efforts to mitigate the effect of Force Majeure. An act of Force Majeure means: anything beyond the control of the party affected and includes, but is not limited to, power failure, network overload, interruption to an internet service, malfunction in a telecommunication system or computer service, breakdown of equipment, link failure, default or failure of a third party, strike or labour dispute (except of the workforce of the party claiming Force Majeure), natural disaster, war, terrorism or action of any government or regulatory authority.
8. CANCELLATION OR TERMINATION
The Advertiser may not cancel any order for an Advertisement which has been accepted in writing by the Publisher without paying the full price unless otherwise specified in the Contract.
If the Advertiser is in breach of the Contract or fails to comply with any reasonable requirement of the Publisher previously communicated in writing, the Publisher shall be entitled, at its election, either to terminate the Contract on giving written notice to the Advertiser or to suspend, remove or cancel an Advertisement (in which case the Publisher shall use its best efforts to give prior written notice or, where not practicable, written notice within 24 hours of suspension, removal or cancellation).
Either party may terminate the Contract immediately by written notice if the other party becomes insolvent or has an administrator or receiver appointed over any of its assets or, if a company, it goes into liquidation.
9. RESOLUTION OF DISPUTES
The Publisher and the Advertiser will endeavour to resolve any dispute by direct negotiation between senior executives of each party.
Any dispute which cannot be resolved amicably by direct negotiation may be referred, if required by either party, to mediation, and the relevant CEDR (Centre for Effective Dispute Resolution) rules shall apply to the mediation.
Any dispute that is not resolved by agreement or through mediation, will be finally resolved by the English courts.
10. GOVERNING LAW
These Terms of Business and the Contract are governed by English law.
11. GENERAL PROVISIONS
11.1 Entire agreement. The Contract, which incorporates these Terms of Business, contains the entire agreement of the parties and supersedes any previous agreements or understandings between them in relation to its subject matter.
11.2 Variation. No variation of these Terms of Business shall be effective unless made in writing and signed by or on behalf of each of the parties.
11.2 No representation. Each of the parties acknowledges that in entering into these Terms of Business it has not relied on any representation or warranty unless set out in these Terms and that (in the absence of fraud) it will not have any remedy arising out of any representation or warranty.
11.3 Severability. If any provision of these Terms of Business is held by a court to be unenforceable or invalid, this will not affect the remaining provisions. If a provision that is found to be unenforceable or invalid would be effective if part of it were deleted or modified, then the provision in question will be modified as necessary to make it valid and enforceable.
11.4 Waiver. No delay or failure by either party to exercise any of its rights under these Terms of Business will operate as a waiver of any of those rights. To be effective, a waiver must be in writing and duly served on the other party.
11.5 Notices. Any notice must be in writing and sent by e-mail, facsimile transmission, first class post or delivered by hand. Notice sent by e-mail, facsimile or by hand shall be treated as having been served on the date of transmission/delivery unless this is outside the normal working hours of the recipient, in which case it shall be treated as served on the next working day. A notice sent by post shall be treated as having been served 2 working days after posting.
In the case of email, each party will designate one email address for the sending and receipt of notices and each party will retain and produce to the other upon request evidence showing that its service provider has confirmed that each email notice it sends has been received.
11.6 Assignment. The Advertiser shall not assign or transfer any of its rights or obligations to a third party without the prior written consent of the Publisher.
11.7 Third Party Rights. Nothing in these Terms of Business is intended to give any third party any rights in relation to these Terms under the Contracts (Rights of Third Parties) Act 1999 unless expressly stated.