The Race Media Ltd is a company registered in England and Wales. Our company registration number is 12232793 and our registered office is at Helios 47, Garforth, Leeds LS25 2DY (“we” and “us”). Our VAT number is GB 335 0341 38. These are the terms and conditions subject to which we will supply advertising services to you as a business (“you”).
- Placing an Order
1.1 If you wish to purchase Advertising Services from us, we will agree with you on the order you would like to place. Our acceptance of your order will take place (a) when we accept it by email, (b) when we place an Advertisement following your instructions, (c) when an order is completed online, or (d) (if we are using an order form), when the order has been signed by our authorised representatives at which point a contract will come into effect between you and us.
1.2 Every time an order is accepted, it shall be incorporated into, and subject to the terms and conditions set out in,this Agreement, which shall take precedence except to the extent that an order expressly overrides this Agreement in writing with specific reference to clause 1.2 of this Agreement.
1.3 Each order shall come into force on its acceptance and shall remain in force until the last scheduled Advertisement of that order has been fulfilled, unless it is terminated or renewed by either you or us in accordance with its terms. Termination or expiry of an order shall not affect the continuance of any other order, unless otherwise stated in this Agreement or expressly agreed by the parties as part of the relevant order.
1.4 Acceptance of an order shall not (unless it is expressly stated otherwise) prejudice any rights, obligations and/or remedies both you and us may have and which have accrued independently under this Agreement.
- Advertising Services
2.1 We shall use reasonable endeavours to provide the Advertising Services in accordance with this Agreement and relevant order(s). If we run an Advertisement, this does not mean in any way whatsoever that we have agreed that (a) you have complied with your obligations under this Agreement, or (b) we waive any of our rights and remedies under this Agreement.
2.2 We may decline to run an Advertisement for any reason at our discretion.
2.3 Time is not of the essence and time deadlines in respect of the Advertising Services are only estimates.
2.4 We do not guarantee:
2.4.1 that an Advertisement will be run on any agreed or proposed date and/or time;
2.4.2 (a) there is space available for an Advertisement on a specific date and/or time, or (b) that an Advertisement will be run in the agreed space or location;
2.4.3 the positioning of an Advertisement, either absolutely or relative to any other Advertisements or copy or other item.
2.4.4 the wording and quality of the Advertisement as run; and
2.4.5 in respect of our digital media, that there will be continuous, uninterrupted access by users of such media.
2.5 We reserve the right to:
2.5.1 alter, cancel and/or postpone scheduled run dates;
2.5.2 reject, not run, remove, not print, suspend, cancel and/or change the position or timing of an Advertisement;
2.5.3 make (or require you to make) any corrections and/or alterations to an Advertisement that we consider (in our sole and absolute discretion) appropriate. This may be (without limitation) in order to ensure that the Advertisement (a) conforms to the style and/or subject-matter of the print and/or digital media in which it is booked to run, (b) is not contrary to this Agreement, (c) conforms to the warranties you are giving us under this Agreement, and/or (d) conforms to the technical specification set out in the applicable Rate Card or Spec Sheet. If you fail to amend the Advertisement copy or Advertiser Materials or do not amend it to our satisfaction, we reserve the right not to run the Advertisement;
2.5.4 alter Advertisements by cropping, overlaying, reducing or increasing the size, re-configuring, re-sampling, or re-purposing for use and/or editing in our digital media;
2.5.5 not run an Advertisement that does not comply with any production deadlines or technical specification set out in the applicable Spec Sheet, or when you have not paid any sums due under this Agreement or are otherwise in default of any payment obligations owed to us (under this Agreement or otherwise); and
2.5.6 withdraw an Advertisement if a court, regulatory authority or government agency notifies you and/or us that the Advertisement does not comply with applicable Laws and orders or requires its withdrawal.
2.6 If at the time you order you are an Agency and do not disclose (a) the name of your Agency Client, and/or (b) the goods and/or services which are to be the subject of the Advertisement(s), we may at any time refuse to accept and/or run, or suspend the Advertisement(s). In such circumstances, neither you nor any Agency Client shall have any claim against us in respect of such refusal to accept and/or run or suspension. If in such circumstances we do not fill any advertising space that had been allocated for the Advertisement, or the space is filled at a lower rate you shall be responsible for any loss suffered and costs and expenses incurred by us.
2.7 In respect of Advertisements in our digital media, special timings, treatments, positions or formats shall be given only if agreed in writing by us. Additional charges shall apply. That agreement shall be specific to you. No third party may take the position without our prior consent.
2.8 We shall have, and you shall procure that we shall have the right of reproducing the Advertisement in any format and in any medium whatsoever and wheresoever in the world both during and after termination of this Agreement for so long as any IP whatsoever subsists in the Advertisement anywhere in the world.
2.9 You shall (a) cooperate fully with us, our affiliates, agents, officers, directors, employees, independent contractors and/or advisers, in each case to the extent reasonably required by us, and (b) provide us, our affiliates, agents, officers, directors, employees, independent contractors and/or advisers with such assistance as it is reasonably required by us.
- Advertiser Materials
3.1 You shall supply the Advertiser Materials to us no later than the deadline we specify. The Advertiser Materials supplied must conform to our requirements, including but not limited to the requirements set out in an applicable Spec Sheet.
3.2 We are not responsible for any loss and/or damage to any Advertiser Materials. It is your responsibility to keep copies of any Advertiser Materials supplied to us.
4.1 You shall notify us of any error in a published Advertisement as soon as practicable and (whenever practicable) prior to the copy date or any date on which the same Advertisement is to be run again, and in any case within 14 days of its first publication.
4.2 If a published Advertisement contains a substantial error solely due to an act or omission by us, we shall offer you a refund of the Charges you paid in respect of that Advertisement on request. This shall be your sole remedy
5.1 You warrant, represent and undertake that:
5.1.1 Whether or not you are an Agency, you are authorised and have obtained any and/or all necessary consents to enter into this Agreement, purchase Advertising Services, and perform your obligations under this Agreement;
5.1.2 where you are an Agency, you have obtained all necessary consents and authorisations from your Agency Client and procured that your Agency Client is authorised and has obtained all consents as set out in clause 5.1.1 above;
5.1.3 where you are an Agency, you have disclosed to us that fact in writing, and you have provided us with the identity of your Advertising Client or agree to do so promptly on request;
5.1.4 any Advertiser Materials you provide us (including those served to us by your Agency Client) and/or Advertisements shall:
220.127.116.11 be accurate, complete, true and not misleading;
18.104.22.168 not violate any applicable Laws;
22.214.171.124 not be unlawful, libellous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, and/or fraudulent;
126.96.36.199 not constitute, encourage or provide instructions for a criminal offence or breach of contract or other obligation to any person, violate the rights of any person, or breach any contract or legal duty of any person, or otherwise create any liability whether in contract, tort, breach of statutory duty or otherwise;
188.8.131.52 not contain content that does or may infringe any third party IP;
184.108.40.206 not contain content that impersonates any person or legal entity or otherwise misrepresents your or your Agency Client’s affiliation with a person or legal entity;
220.127.116.11 not contain unsolicited promotions targeted to a specific recipient or user or political campaigning;
18.104.22.168 not contain information that we consider to be (in our sole and absolute discretion) (a) private and Confidential Information of any third party, and (b) Personal Data and/ or Sensitive Personal Data of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers and credit card numbers;
22.214.171.124 not operate or provided in a form outside the specifications allowed for it in the Spec Sheet;
126.96.36.199 not contain Viruses; and
188.8.131.52 not contain content that (in our absolute discretion) is objectionable or which may expose us, our Group Companies, and/or a third party to any harm or liability of any type.
5.1.5 you have obtained the consent of (a) any living person whose name and/or image (in whole or in part) or other Personal Data of which is contained in the Advertiser Materials and/or the Advertisement, and (b) the estate or representatives of any deceased person where consent is required to lawfully use or imply any connection with or endorsement by that deceased person, and in particular the use of any image.
5.2 We warrant that we have the legal power to enter into this Agreement.
5.3 Except as expressly stated in this Agreement, we do not make any warranties of any kind, whether implied, statutory or otherwise, including any warranties of satisfactory quality, merchantability, non-infringement or fitness for a particular purpose. We do not warrant that the results of the Advertising Services will be uninterrupted or error-free.
- Data Protection
6.1 Notwithstanding the prohibition set out in clause 184.108.40.206, if it transpires that you have provided Personal Data and/or Sensitive Personal Data to us under this Agreement, you hereby expressly agree that (to the extent we provide you with Advertising Services) you are the Data Controller and the we are the Data Processor of such Personal Data and/or Sensitive Personal Data. You warrant, represent and undertake that:
6.1.1 you comply and shall comply throughout the term of this Agreement with all applicable Laws including all Privacy & Data Protection Privacy Requirements in respect of such Personal Data and/or Sensitive Personal Data;
6.1.2 you have (or have procured) and shall have (or shall procure) throughout the term of this Agreement, all permissions, consents and approvals of Data Subjects to provide their respective Personal Data and/or Sensitive Personal Data to us and to allow us and/or our Group Company that will be running the Advertisement to process such Personal Data and/or Sensitive Personal Data in the course of performing our obligations under this Agreement;
6.1.3 you shall not do or omit to do anything which causes us to breach any applicable Laws or contravene the terms of our registration, notification or authorisation under the Data Protection Act 1998 and/or the registration, notification or authorisation of any of our Group Companies under the Data Protection Act 1998; and
6.1.4 any such Personal Data and/or Sensitive Personal Data is (and will be) throughout the term of this Agreement up to date, accurate and complete.
6.2 You acknowledge and agree that, where noted in the relevant Spec Sheet, or where contained in an Advertisement or Advertiser Materials, Personal Data and/or Sensitive Personal Data that you provide to us under this Agreement may be stored, hosted and/or processed in countries outside the European Economic Area.
6.3 If you wish to drop cookies on users’ computers, use pixels, web beacons and/or other Data collecting technology (“Data Collecting Technology“) for the purpose of displaying and/or providing advertising on our digital media and tracking impressions and related data, you shall notify us in writing in advance of booking an Advertisement and provide all information requested by us regarding such Data Collecting Technology
6.4 If we authorise you in writing to use Data Collecting Technology, you shall use such Data Collecting Technology and/or all Data collected solely in the manner disclosed to and authorised by us in writing.
6.5 For the purposes of this Agreement, we hereby expressly agree that we are the Data Controller and you are the Data Processor of Personal Data and/or Sensitive Personal Data collected by you through such Data Collecting Technology and all such Personal Data and/or Sensitive Personal Data shall be Confidential Information owned by us. Such Personal Data and/or Sensitive Personal Data shall not be disclosed by you to any third party without our prior written consent.
6.6 In no event shall such Data Collecting Technology or the Data you collected be used by you for the purpose of tracking and/or targeting users when they leave our digital media or be combined with information collected from other sources, except where we have given our prior written consent.
6.7 You warrant, represent and undertake that you shall:
6.7.1 process the Personal Data and/or Sensitive Personal Data in compliance with all applicable Laws, only act on our instructions, and strictly for the purposes of performing your obligations in accordance with the terms of this Agreement;
6.7.2 comply with our (and our Group Company that will be running your Advertisement) privacy policies or policies with respect to such Data Collecting Technology and all applicable Laws and regulations and that all such data shall be deleted from your servers upon the end of this Agreement; and
6.7.3 take all appropriate technical and organisational measures against the unauthorised and/or unlawful processing of Personal Data and/or Sensitive Personal Data and against the accidental loss or destruction of, and/or damage to, Personal Data and/or Sensitive Personal Data to ensure your compliance with the seventh data protection principle.
6.8 If you breach this Clause 6, this shall entitle us to terminate this Agreement immediately by giving you written notice.
- Cancellations and Transfers
7.1 If you wish to cancel an Advertisement, you shall notify us in writing and in accordance with any timescales set out in a relevant Rate Card or Spec Sheet. The notification shall become effective only when we confirm that we have received it. If at our discretion we decide to allow any cancellation requested, you shall be liable to pay any applicable cancellation fees as set out in the relevant Rate Card or Spec Sheet.
7.2 If we wish to cancel an Advertisement, we shall notify you as soon as reasonably practicable and such notification shall become effective in accordance with the notice provisions in clause 14.1. We shall give you a refund of any paid Charges in relation to a cancelled Advertisement, unless we deem (at our sole discretion) the cancellation to be attributable to your failure to comply with the terms of this Agreement or matters outside our reasonable control. If we cancel an order for a series of Advertisements, you shall not be liable for any difference of the rate between the entire series specified in your order and the usual rate for the number of Advertisements that have appeared when the cancellation occurs.
7.3 If you cancel the balance of an order, you waive any right that you may have to any discounts series to which you were previously entitled, and must pay for the relevant Advertisements at the appropriate rate set out in the Rate Card for the number of Advertisements which have appeared when the cancellation takes effect.
7.4 If a relevant Rate Card or Spec Sheet provides you with a right to request a transfer an Advertisement, then any such right may only be exercised in accordance with the terms and conditions and on the timescales set out in the applicable Rate Card or Spec Sheet. A request to transfer an Advertisement shall become effective only when we confirm that we have received it and we reserve the right (at our sole discretion) to accept or refuse a request to transfer an Advertisement. You shall be liable to pay any applicable transfer fees as set out in the relevant Rate Card or Spec Sheet.
- Charges & Payment
8.1 Payment is calculated in relation to each Advertisement type as set out in the appropriate Rate Card and Spec Sheet and are payable in accordance with the terms of this Agreement and the applicable Rate Card, and any discount explicitly agreed in writing between you and us. Notwithstanding any other provision of this Agreement, where we have offered you a discount from the Rate Card, such discount shall cease to apply where you or the Advertisement or Advertising Materials are in breach of this Agreement. Where we have provided you with a custom Advertisement type not set out in the Rate Card, the price is as otherwise agreed between us in writing.
8.2 For the avoidance of doubt, an Agency must pay our Charges in accordance with the terms of this Agreement whether or not the Agency has received payment from its Agency Client.
8.3 Irrespective of clause 14.2, if you fail to make payment of any sums due (“Debt”), we shall be entitled to initiate proceedings against you without any notice in order to recover the Debt.
8.4 Unless otherwise agreed in writing:
8.4.1 subject to clause 8.1, the Charges for any Advertisement (including any Advertisement published as part of a series) will be the Rate Card price as at the date the relevant order for an Advertisement was accepted;
8.4.2 we shall raise an invoice and payment is due on the date or within the term specified on that invoice or in the applicable Rate Card or (if not specified) within 7 days after the Advertisement is run;
8.4.3 we may at our discretion split any order for Advertising or Advertising Services into more than one invoice totalling the relevant sums payable in respect of the order;
8.4.4 we may issue as supplementary invoice where you are in breach of this Agreement and we exercise our rights to charge Rate Card rates and disapply any discount under Clause 8.1 without prejudice to any other right we may have under this Agreement;
8.4.5 if you fail to make payment of any sums when due, then you shall be liable to be pay (a) an administration fee and (b) interest (accruing on a daily basis) on the amount unpaid, in each case in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (whether or not applicable to this Agreement) from the due date of payment, both after as well as before any judgment or order;
8.4.6 any and/or all costs and expenses incurred by us (including legal costs and expenses) in recovering sums due under an unpaid invoice shall be recoverable from you; and
8.4.7 all sums payable by you under this Agreement are payable in Pounds Sterling to the bank account indicated on the invoice and are exclusive of any tax, levy or similar governmental charge, including value added or sales tax which we shall add at the applicable rate.
8.5 You acknowledge and agree that we shall act as agent for any of our Group Companies that runs an Advertisement in its title(s) or on its Digital Media in all matters relating to the invoicing and collection of receivables.
8.6 All sums due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.7 If you breach this clause 8 we may terminate this Agreement immediately by giving you written notice.
- Intellectual Property
9.1 Any and all IP in Advertiser Materials are, and shall remain, your property (or the appropriate third-party rights owner(s), if any). You hereby grant (and shall procure the grant of) an irrevocable, non-exclusive, royalty-free, worldwide and perpetual licence to us to use the IP in Advertiser Materials for the purpose of performing our obligations and exercising our rights under this Agreement.
9.2 Any and all IP (other than any third-party IP) arising out of or in connection with our provision of the Advertising Services under this Agreement are, and shall remain, our property (or the appropriate third party rights-owner(s), if any) (“The Race Media Ltd IP”). Subject to your compliance with this Agreement (including your payment obligations under clause 8), we hereby grant (and shall procure the grant of) to you a limited, revocable, non-exclusive licence for the duration of the Term of this Agreement to use to the The Race Media Publisher IP solely for the purpose of performing your obligations under this Agreement.
9.3 If you breach this clause 9, this shall entitle us to terminate this Agreement immediately by giving you written notice.
9.4 You shall fully and effectively indemnify and hold harmless us and our Group Companies against all losses, actions, costs (including legal fees and disbursements on a solicitor/client basis), claims, demands, fines, damages and liabilities, of whatever nature, incurred or suffered by or made against ourselves and/or our Group Companies, whether or not foreseeable, arising directly or indirectly, wholly or in part, out of or in connection with any claim that (a) the use of the Advertiser Materials by us and/or our Group Companies, and/or (b) the Advertisement infringes any third party IP.
- Confidential Information
10.1 Both you and we may receive (“Receiving Party”) Confidential Information from each other (“Disclosing Party”) whether before or after the Start Date of this Agreement. The Receiving Party shall (a) keep the Confidential Information confidential, (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with clauses 10.2, or 10.3, and (c) not use the Confidential Information for any purpose other than the performance of its obligations or the enjoyment of its rights under this Agreement (“Permitted Purpose”).
10.2 The Receiving Party may disclose Confidential Information to its own officers, directors, employees, contractors and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this clause 10 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Agreement). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this clause 10.
10.3 If required by law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order providing for the confidentiality of such information.
11.1 We may terminate this Agreement or an order form with effect at any time by giving you 15 days’ prior written notice.
11.2 We shall be entitled to terminate this Agreement or any order immediately by written notice whenever you breach any provision hereof which expressly entitles us to terminate the Agreement.
11.3 A party shall be entitled to terminate this Agreement or an order form immediately by giving written notice to the other, if the other party (a) commits any material breach of this Agreement and fails to remedy that breach within 15 Business Days’ written notice of that breach, or (b) commits any material breach of this Agreement that is incapable of remedy.
11.4 A party shall be entitled to terminate this Agreement or an order form immediately by giving written notice to the other, if the other party (a) ceases or threatens to cease to carry on its business or substantially the whole of its business other than for the purposes of amalgamation or reconstruction without insolvency, or (b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (other than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets, or a court or arbitrator with authority to so determine, determines that the debtor is unable to pay its debts(s).
11.5 If you are a natural person, unincorporated association or unincorporated partnership, then we shall be entitled to terminate this Agreement or an order immediately by giving written notice to you, if you are declared bankrupt or make any arrangement with or for the benefit of your creditors or have a county court administration order made against you under the County Court Act 1984.
- Expiry & Termination Consequences
12.1 In the event of expiry or termination of this Agreement, all orders then in place shall also terminate. Expiry or termination of an individual order shall not (unless otherwise stated in this Agreement) otherwise affect this Agreement and/or any other order then in force.
12.2 Expiry or termination shall not prejudice any other rights or remedies you or us may be entitled to, nor will it affect the accrued rights and liabilities of either of us, nor the coming into or continuance in force, of any provision of this Agreement which is intended (explicitly or implicitly) to come into or continue in force, on or after such expiry or termination.
12.3 Upon expiry or termination of this Agreement:
12.3.1 You shall pay any Charges for Advertising Services that have been provided up to (and including) the expiry or termination date but not paid for;
12.3.2 the licence granted by us to you under clause 9.2 shall terminate immediately;
12.3.3 the licence granted to us by you under clause 9.1 shall survive
12.3.4 you shall immediately cease to use, and shall return to us or, at our option, destroy, any Personal Data and/or Sensitive Data collected by you through Data Collection Technologies; and
12.3.5 we shall return to you, or destroy all Advertiser Materials received in connection with the Advertising Services that have not been collected by you within six months of their receipt by us without giving notice to you. You shall be liable for any costs and expenses incurred by us and/or our Group Company that runs the Advertisement in returning or destroying the Advertiser Materials.
13.1 Neither you nor we shall exclude or limit our liability for (a) death or personal injury caused by negligence, (b) fraud and/or fraudulent misrepresentation.
13.2 You shall not exclude or limit your liability under any indemnities given by you under this Agreement.
13.3 You shall fully and effectively indemnify us and hold us harmless and any Group Company that runs an Advertisement against all losses, actions, costs (including legal fees and disbursements on a solicitor/client basis), claims, demands, fines, damages and liabilities, of whatever nature, incurred or suffered by or made against ourselves and/or the aforementioned Group Company, whether or not foreseeable, arising directly or indirectly, wholly or in part, out of or in connection with any breach of this Agreement.
13.4 We shall not (whether in contract, tort, negligence, statutory duty or otherwise) be liable to you under this Agreement for consequential, indirect or special damages (including indirect loss of profit and indirect loss of revenue).
13.5 Subject to clause 13.1 and 13.4, our maximum aggregate liability to you under this Agreement (whether arising in contract, tort, negligence, statutory duty or otherwise) shall not exceed the Charges you paid to us during the 12 months prior to when the claim accrued.
14.1 Notices. All notices (including any invoices) under this Agreement shall be in writing and shall be sent to the address specified by the recipient. Any notice may be delivered by email, by a reputable courier service, or by post. The notice shall be deemed to have been given if sent by email within 12 hours of delivery to the sender’s ISP provided within that time no notice of delivery failure has been received, if sent by courier on delivery and if sent by post 2 Business Days after the notice was posted.
14.2 Disputes. If any dispute arises between us out of or in connection with this Agreement, our respective representatives shall meet within 5 Business Days of receipt of a written notice of such dispute, in an effort to resolve the dispute. If the dispute is not resolved within 5 Business Days of that meeting, the dispute shall be referred to our respective senior management (or their nominees) who shall meet within 5 Business Days of the referral to attempt to resolve the dispute. If, despite following the process set out above, the dispute is not resolved, either of us may refer the matter to the courts. This clause shall not restrict either you or us from initiating any proceedings in respect of a matter where either party has reasonable cause to do so to avoid damage to its business or to protect or preserve any right of action it may have, or from applying for or obtaining emergency or interlocutory relief.
14.3 Force Majeure. We shall not be liable to you for any delay or failure to perform hereunder (excluding payment obligations) due to force majeure events including, but not limited to, a natural disaster, actions or decrees of governmental bodies, acts of terrorism, epidemics, quarantines, embargos, labour strikes, communications line failure or other event beyond the control of the parties which (a) hinders, delays or prevents us in performing any of our obligations, (b) is beyond our control of without our fault or negligence, and (c) by the exercise of reasonable diligence we are unable to prevent or provide against (“Force Majeure Event”). In such circumstances, we shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 or more calendar days, you may terminate this Agreement by giving us 5 Business Days written notice.
14.4 Publicity. We expressly agree that we and, if applicable, our Group Company that will be publishing the Advertisement shall be entitled to refer to you as a client in sales and marketing literature (including websites) and reproduce your prevailing logo or trademark for that sole purpose.
14.5 Third party Rights. Unless expressly stated, no provision of this Agreement is enforceable by, or intended to benefit, any person (including, but not limited to, any Agency Client) who is not a party to this Agreement.
14.6 Assignment and subcontracting. This Agreement is personal to you. You shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of your rights and responsibilities under this Agreement without our prior written consent. Such consent shall not relieve you from any liability or obligation under this Agreement and you shall be responsible for the acts, omissions, defaults and/or negligence of your sub-contractors as fully as if they were your own. We may assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of our rights and responsibilities under this Agreement at any time without your prior written consent.
14.7 Amendments and changes. No purported alteration or variation of this Agreement shall be effective unless it is in writing, refers specifically to this Agreement and is signed by an authorised representative of each of the parties to this Agreement. Any amendment to this Agreement agreed in writing by the parties shall (unless that amendment states otherwise) be deemed only to apply to any orders entered into after the date of such amendment.
14.8 Severability. If any provision of this Agreement is held by a court to be unenforceable, then that provision shall be deemed to be amended to the extent necessary, and in a manner consistent with the intentions of the parties, to make it and the Agreement fully enforceable. The unenforceability of any provision of this Agreement shall not affect the remaining provisions.
14.9 No Waiver. A delay in exercising, or failure to exercise, any right or remedy in connection with this Agreement shall not operate as a waiver of that right or remedy. The waiver of a right to require compliance with any provision of this Agreement in any instance shall not operate as a waiver of any further exercise or enforcement of that right. The waiver of any breach shall not operate as a waiver of any subsequent breach. No waiver in connection with this Agreement shall, in any event, be effective unless it is in writing and refers expressly to this clause.
14.10 Further assurance. Each party shall do and execute, or arrange for the doing and executing of, any act and/or document reasonably requested of it by any other party to implement and give full effect to the terms of this Agreement.
14.11 Remedies cumulative. The remedies under this Agreement are cumulative and no remedy is exclusive of any other remedy except as expressly stated.
14.12 Counterparts. This Agreement may be entered into in any number of counterparts and by the parties on separate counterparts, all of which taken together shall constitute one and the same instrument.
14.13 Status of parties. Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
14.14 Entire Agreement. This Agreement sets out the entire understanding of the parties in relation to its subject matter and supersedes any prior understanding or agreement between the parties whether oral or written. Nothing in this Agreement shall, however, limit or exclude any liability for fraud or fraudulent misrepresentation.
14.15 Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be governed by, and construed in accordance with, the laws of England, and shall be subject to the exclusive jurisdiction of the English Courts, to which the parties irrevocably submit.
15.1 In this Agreement the following terms have the following meanings:
|“Advertisement”||includes any loose or insert advertisement, any advertisement attached to or distributed with the relevant publication including free gifts, information supplied in connection with an advertisement, and advertisements in any form, including computer or electronic readable form, and whether in video, flash, animated text or image, image, audio, or any other format;|
|“Advertiser Materials”||means materials supplied to us (including any copy and creative) in respect of an Advertisement;|
|“Advertising Services”||means the services provided by us to you under an order, including our running of an Advertisement;|
|“Agency”||means an advertising agency or a media buyer that places an Advertisement on behalf of a third party;|
|“Agency Client”||means the natural or legal person on whose behalf an Agency runs an Advertisement;|
|“Agreement”||means these terms and conditions, the order, and any documents stated in any of them as being incorporated by reference, including the applicable Rate Card and Spec Sheets. Where copy and/or other instructions are provided by you but are not included in an order, they shall not be deemed to be part of this Agreement;|
|“Business Days”||means any day other than Saturday, Sunday, Christmas Day, Good Friday or a statutory Bank Holiday in England & Wales;|
|“Charges”||means the agreed charges based on the Rate Card for the Advertising Services;|
|“Confidential Information”||means information of an operational, administrative, financial or business nature, or which is Personal Data, Sensitive Personal Data or otherwise, and which comes into a party’s possession under or in connection with this Agreement that (a) is identified as confidential to the other party; or (b) ought reasonably to be considered as confidential to the other party (whether or not identified as confidential), and in any case shall include (i) any information relating to a party including information in respect of a party’s business, activities, personnel, customers, products, business plans, business developments, finances, marketing plans, management systems, new business opportunities, ideas, know-how, processes, policies and/or procedures;|
|“Data”||means data, Personal Data and/or Sensitive Personal Data;|
|“Data Controller”||has the meaning set out in the Data Protection Act 1998;|
|“Data Processor”||has the meaning set out in the Data Protection Act 1998;|
|“Data Subject”||has the meaning set out in the Data Protection Act 1998;|
|“Digital Media”||means websites, mobile apps, desktop apps, tablet apps and any other medium for the transmission of Advertisements in a digital format;
|“Group Company”||means an entity that directly or indirectly controls, is controlled by, or is under common control with a party. “Control” shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of an entity whether by contract, ownership of shares, membership on the board of directors, agreement or otherwise. Further, an entity is deemed to be a Group Company when it is carrying out a joint venture with a Group Company and such entity is running an Advertisement either as our subcontractor or Agent;|
|“IP”||means any and/or all rights in software, inventions, patents, copyrights, design rights, trademarks and trade names, database rights, domain names, service marks, trade secrets, know-how, rights in Confidential Information and other intellectual property rights (whether registered or unregistered) and all applications and registrations for and extensions and renewals of such rights or any of them, anywhere in the world;|
|“Laws”||means any and/or all applicable laws, statutes, court orders, industry codes, industry regulations and/or industry guidance (whether in the UK and/or other jurisdictions in which an Advertisement will appear) including (but limited to) (a) the Financial Services Act 2012, (b) the Privacy & Data Protection Requirements, (c) the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing, and all other applicable codes under the general supervision of the Advertising Standards Authority, or Trading Standards, and the equivalent of any of the foregoing in any relevant jurisdiction, and (d) in the case of an Advertisement which relates to mail order goods, the Safe Home Ordering Protection Scheme;|
|“Person”||Includes any natural person, corporation, company, partnership, LLP, or any other entity or association (incorporated or otherwise), including state or governmental emanations, agencies and departments, and quangos;|
|“Personal Data”||has the meaning set out in the Data Protection Act 1998;|
|“Privacy and Data Protection Requirements”||means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK; and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law and all applicable laws and regulations relating to the processing of Personal Data or Sensitive Personal Data and privacy and as amended, consolidated or superseded by similar or equivalent legislation, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction;|
|“Process” or “Processing”||has the meaning set out in the Data Protection Act 1998;|
|“Rate Card”||means the rate card in respect of the relevant media for an Advertisement including advertising rates and additional terms and conditions concerning copy and cancellation dates;|
|“Sensitive Personal Data”||has the meaning set out in the Data Protection Act 1998;|
|“Spec Sheet”||means the document in respect of the relevant media for the Advertisement setting out technical and stylistic specifications and related information, including additional terms and conditions applicable to the relevant media;|
|“Start Date”||means the date that this Agreement is executed by both parties, or, if not so executed, the date upon which we first accept your order to place an Advertisement; and|
|“Virus”||means any thing or device (including without limitation, software, code, malware, adware, bit torrents, files or programmes) which may (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service equipment or network or any other service or device, (b) prevent, impair, or otherwise adversely affect access to or operation of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part of otherwise), and/or (c) prevent, impair or otherwise adversely affect our websites, media and/or the user experience.|
15.2 The words “including”, “include”, “in particular”, “for example” and any similar word or expression are illustrative and are not intended in any way to limit the sense or interpretation of preceding words, and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible.
15.3 Clause headings and subheadings are not to be used in its interpretation.
15.4 References to this Agreement or any other document are to this Agreement or that document as in force for the time being and as amended, supplemented, varied, modified, renewed or replaced or extended.
15.5 A reference to a statute or statutory provision shall unless otherwise stated be construed as including a reference to any subordinate legislation (as defined by section 21(1) Interpretation Act 1978) made from time to time under the statute or statutory provision whether before, on or after the Start Date; and
15.6 A reference to industry regulations, industry codes, or industry guidance, shall unless otherwise stated be construed as referring to industry regulations, industry codes, or industry guidance as in force as at the Start Date and as from time to time modified or consolidated, superseded, re-enacted or replaced (whether with or without modification) on or after the Start Date.