1. DEFINITIONS
1.1 Words and expressions in these Terms and Conditions have the
following meanings unless the context otherwise requires:
“Acts of God” shall include natural disasters; epidemic; lightning, storms
or tempest; fire, flood or explosion; war (whether declared or not),
warlike operations, hostilities, invasion, act of foreign enemies or
terrorist acts; rebellion, revolution, insurrection, military or usurped
power and civil war; nuclear, chemical or biological attacks; ionising
radiation or contamination by radio-activity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel, radioactive
toxic explosives, or other hazardous properties of any explosive nuclear
assembly or nuclear components thereof; malicious damage caused by
an unrelated party; accidents or breakdown of machinery or plant;
strikes, lock-outs, industrial action, riots and civil unrest which prevents
work required under this Agreement from being carried out by either
Party for a continuous period exceeding 30 days; impact of aircraft or
other aerial device or things dropped from them; and pressure waves
caused by aircraft or other aerial devices travelling at sonic or supersonic
speed.
"Advertisement Copy" means advertising material (including posters
and digital format advertising material) intended for display by the
Contractor, and includes any advertisement copy approved or deemed
to be approved in accordance with clause 6.8.
“Advertising Standards” means all statutory and legal requirements and
regulations in force relating to the content of advertisements or
promotional messages, including The UK Code of Non-broadcast
Advertising, Sales Promotion and Direct Marketing (12th edition).
“Agent” means any person, firm or body corporate appointed by the
Principal as agent to administer an Order and in so doing to enter into
this Agreement on its behalf.
"Agreement" means a legally binding agreement between the Parties
consisting of the Order, the Order Confirmation and these Terms and
Conditions.
“Artwork” means the artwork, information and materials required or
requested by the Contractor for the purpose of undertaking (or
procuring the undertaking of) Production Services.
"Order Confirmation" means the document or written
communication sent by the Contractor to the Principal or to the Agent placing the Order on behalf of the
Principal.
"Contractor" means Radiant Media Ltd T/A Alight Media, herein after known as Alight whose registered office is at 12 New Fetter Lane London EC4A 1JP and/or affiliates or their successors in title.
“Copy Guidelines” means the list of any Landlord restrictions relating to
advertising copy content, as provided by the Contractor to the Principal
or Agent.
“Design” means the service of designing advertising material for use in
Advertisement Copy.
“Digital Advertisement System" means the infrastructure, network,
hardware and software used by the Contractor for the scheduling,
transmission and display of digital format Advertisement Copy at the
Sites.
“Display Period” means, in respect of a campaign (or the relevant part
thereof) to be displayed on:
(a) any traditional format Site type, the period between the end of the
Posting Period for the relevant Site type and the beginning of the
Removal Period for such Site type; and
(b) any digital format Site type, during the period agreed with the
Principal, the sequence or proportion of display time specified in
the Order Confirmation, subject to clause 4.4.
“Draft Copy” has the meaning given in clause 6.3.
"Due Date" means the date by which payment is due as specified on the
Order or Order Confirmation (as appropriate), and to the extent that
no date is specified, the Due Date in respect of any amount invoiced
shall be 28 days from the date stated on the invoice.
"End Date" means the date specified as the “end date” or the “expiry
date” in the Order Confirmation by reference to which the Removal
Period for an advertising campaign shall be calculated (also referred to
as the “out of charge date”).
"Fee" means the amount(s) for the display of advertising and the
Production Services (if any) specified in the Order or, if different, the
Order Confirmation.
"Landlord" means each person, firm, or company with whom the
Contractor has a concession to display advertising on their property.
"Month" means a calendar month.
"Order" means an order sent by or on behalf of the Principal to the
Contractor for the Production Services and/or the display of
Advertisement Copy (which is subject always to these Terms and
Conditions).
"Parties" means the Contractor and Principal.
"Principal" shall mean: (a) the person, firm or body corporate, whether
or not an advertising agency, who submits an Order; or (b) where an
Order is submitted by an Agent who warrants that it is authorised to act
as agent on behalf of a principal, the person specified as the principal in
such Order.
“Production Services” means Design and/or Printing (as appropriate).
"Production Specifications" means the document or documents
provided to the Principal or the Agent containing the Contractor’s
technical specifications relating to the provision of Artwork (where the
Contractor is responsible for Design and/or Printing under the Order)
and the production of Advertisement Copy, including any applicable DEP
content specifications or traditional format specifications relating to
dimensions, format, printing materials, suppliers and/or other printing
specifications.
"Sites" means the locations at which the Contractor may display
Advertisements.
"Start Date" means the date specified as the “start date” or the “in
charge date” in the Order Confirmation by reference to which the
Posting Period for an advertising campaign shall be calculated.
"Terms and Conditions" means these general terms and conditions.
"Working Day" means any day from Monday to Friday inclusive except
any UK Bank Holiday or UK Public Holiday.
1.2 Any references to statutes, regulations, self-regulation, codes, and
guidance are to be interpreted as references to such provisions as
amended, consolidated, supplemented or re-enacted (with or without
modification) from time to time, and the use of the words “include” or
“including” is not to be interpreted as limiting the terms of this
Agreement.
2. TERMS GOVERNING ORDERS AND CONFIRMATIONS OF ORDER
2.1 Subject to clause 2.2, each Order shall be signed by the Principal and
incorporate these Terms and Conditions. To the extent that any Order is
sent to the Contractor without specifying the identity of the Principal,
the parties agree that the person, firm or company sending the Order
shall be the Principal.
2.2 The Parties agree that an Agent may sign and/or submit an Order
incorporating these Terms and Conditions where:
(a) the Agent identifies, or has identified, the Principal under such Order;
and
(b) in so doing the Agent warrants that it is authorised to act as agent on
behalf of the Principal.
2.3 Following receipt of an Order from the Principal or the Agent, the
Contractor may accept the Order by sending the Principal or the Agent
(as appropriate) a Order Confirmation or, following the correction of
any mistake in the Order Confirmation promptly notified to the
Contractor by the Principal or the Agent, a revised Confirmation or
Order.
3. APPLICATION OF THESE TERMS AND CONDITIONS
3.1 The Principal shall be ultimately responsible for the payment of Fees and
shall be deemed to have full authority in all matters connected with the
placing of the Order and the approval or amendment of Advertisement
Copy and Artwork. For the avoidance of doubt, every Order accepted by
the Contractor will be for a specified advertiser, and any change to the
advertiser must be agreed to in writing by the Contractor. The
Contractor’s customer services department and the authorised person
nominated by the Principal or the Agent (as appropriate) in any Order
will have authority to agree any amendments to and approval of
Advertisement Copy and Artwork for the Contractor and the Principal
respectively.
3.2 Where an Order has been placed through an Agent, the Agent is deemed Principal unless otherwise stated and in that case, any obligation of the Contractor to give the Principal notice, provide the Principal with draft
advertisement copy, or to provide any other thing to the Principal will be
duly discharged by the Contractor giving or providing such notice, draft
advertisement copy or other thing to the Agent, who warrants that it is
authorised on behalf of the Principal to receive the same.
4. DISPLAY OF ADVERTISEMENT COPY
4.1 The Contractor will subject to these Terms and Conditions (including
clauses 1.2 and 3 above, and clauses 4.4, 5.5, 5.9, 9.4 and 18 below) and
unless otherwise agreed procure that the Advertisement Copy is affixed
or displayed at the Sites for the full Display Period and, subject to clause
5, from time to time as necessary procure that the Advertisement Copy
is renewed out of stocks to be provided by or at the expense of the
Principal. The Contractor may remove Advertisement Copy in
accordance with the relevant Removal Period(s), provided always that
unless otherwise agreed the Contractor shall be entitled to display
Advertisement Copy beyond the end or expiry date specified in the
relevant Order Confirmation at no cost to the Principal.
4.2 When the Principal is entitled under the Order Confirmation to a
change of Advertisement Copy on display at a given Site commencing on
a stipulated date, the Contractor shall complete such change within the
applicable Posting Period as if the stipulated date were the Start Date for
a new campaign, provided the Contractor has received the relevant
Advertisement Copy or Artwork in accordance with clause 5 below.
4.3 The Contractor reserves the right to display Advertisement Copy at Sites using its discretion and to substitute planned Sites for other Sites of a
similar quality where the Contractor considers this is necessary. In
addition, the Principal agrees that the Contractor may re-format or make
such minor alterations to Advertisement Copy as may in the Contractor’s
reasonable opinion be necessary in order for the Contractor to comply
with the Landlord’s requirements or to ensure compatibility with Site
types or in order to accommodate slight variations in inventory of the
same Site type.
4.4 The Principal acknowledges that notwithstanding any sequence or
proportion stated in the Order Confirmation, the display of
Advertisement Copy on certain digital format Site types is subject to
interruption or obstruction. The Order Confirmation and the
definition of Display Period shall be interpreted accordingly.
4.5 The Fees include the maintenance of display of Advertisement Copy at
Sites in good condition provided that, where the Contractor is not
responsible for production of Advertisement Copy, the Contractor has
been supplied with any necessary replacement Advertisement Copy
requested by the Contractor from time to time in accordance with
clause 5.
4.6 The Principal will only provide photographs of displayed Advertisement
Copy at Sites (or any other form of display report) if expressly agreed in
the Order Confirmation. To the extent that the Contractor has agreed
to provide posting reports, the Contractor will provide the same in the
Contractor’s customary form (including as to the nature and level of
detail of any information included) and within the Contractor’s
customary timeframe for producing such reports.
5. SUPPLY OF MATERIAL
5.1 In the case of advertisements to be displayed in a traditional (non-digital) format, all Advertisement Copy and Artwork (subject to any
other terms in the Order Confirmation) is to be delivered carriage paid
and shall be supplied to the Contractor at the place(s) and within the
time specified in the Order Confirmation. Subject to clause 5.3, all
Advertisement Copy shall be printed and shall be supplied to the
Contractor in accordance with the Production Specifications for the
relevant traditional media Site type(s).
5.2 In the case of advertisements to be displayed in a digital format, all
Advertisement Copy and Artwork (subject to any other terms in the
Order Confirmation) is to be delivered in the specified electronic
format and shall be supplied to the Contractor within the time specified
in the Order Confirmation by the specified delivery method. Subject to clause 5.3, all Advertisement Copy shall be supplied to the Contractor
in accordance with the Production Specifications for the relevant digital
media Site type(s).
5.3 In the event that the Order Confirmation provides that the Contractor
will undertake Production Services then the Principal shall provide all
necessary Artwork and any other information or detail to allow the
Design and/or Printing by the time specified in the Confirmation of
Order or, to the extent no time is specified, no less than 4 weeks before
the Start Date. The Principal will supply any imagery print ready (at least
300 dpi) and any illustrations (including logos) in Vector format.
5.4 To the extent that:
(a) any Advertisement Copy delivered to the Contractor does not comply
with all relevant Production Specifications; or
(b) any Advertisement Copy or Artwork is not delivered in the specified
electronic format or by the specified delivery method,
then the Advertisement Copy or Artwork (as appropriate) will be
deemed not to have been delivered in accordance with this clause 5. The
Parties acknowledge that an approval or acceptance of Advertisement
Copy or Artwork is an affirmation by the Contractor that the
Advertisement Copy or Artwork meets the Production Specifications,
and not that the Advertisement Copy or Artwork complies with the
Advertising Standards or the warranties set out in clause 9.2.
5.5 Should the Principal fail to deliver Advertisement Copy or Artwork in
accordance with this clause 5 the Contractor is not obliged to display the
non-compliant or undelivered Advertisement Copy but the Principal
shall, nonetheless, be liable to pay the corresponding Fees. Upon
delivery of the Advertisement Copy or Artwork, the Contractor will use
reasonable endeavours to provide the Production Services and/or
display the non-compliant or late Advertisement Copy but without any
commitment to post such Advertisement Copy within the relevant
Posting Period(s). The Contractor will remove any such Advertisement
Copy posted in accordance with the provisions of clause 4.1.
5.6 Any part delivery of the Advertisement Copy or Artwork, delivery in the
incorrect format, or delivery not meeting the Production Specification or
any of the provisions of this clause 5 shall be deemed to be no delivery
for the purposes of this clause.
5.7 Delivery of Advertisement Copy shall not be deemed to have been made until the relevant posting instructions have been given to the Contractor.
5.8 Where the Contractor is not undertaking Production Services, the
Principal shall supply the Contractor with an adequate amount of
Advertisement Copy to complete the initial display plus an adequate
number of spares. The minimum requirements for spare posters are
stated on the Production Specifications or the bus despatch details (as
appropriate) provided by the Contractor.
5.9 The Principal acknowledges that the Contractor may refuse to display, or remove or discontinue the display of, Advertisement Copy which does
not comply with the Contractor’s sales and copy acceptance policy
or the Copy Guidelines. The Contractor’s liability is limited as outlined in clause 12.4 below. To the extent that Advertisement Copy was provided by the Principal in good faith and has not breached any of the warranties in
clause 9.2, the Principal shall not be liable to pay any Fees in respect of
any period during which the Advertisement Copy was not displayed.
6. DESIGN
6.1 Provided that Artwork is supplied to the Contractor in accordance with
clause 5 and subject to clause 6.2, the Contractor will undertake design
services if specified in the Order Confirmation on the terms of this
clause 6.
6.2 The Principal hereby grants the Contractor a non-exclusive revocable
licence of all intellectual property rights in and to the Artwork (including,
for instance, any copyright and trade marks) reasonably required by the
Contractor to design advertisement copy and to perform its other
obligations in the Agreement without infringing any third party’s rights.
The Principal warrants to the Contractor as a condition of the Agreement
that the Principal has the right, capacity, power and authority to give the
licence contained in this clause 6.2.
6.3 Following receipt of the Artwork in accordance with clause 5, the
Contractor will provide the Principal with an electronic copy of draft
advertisement copy (“Draft Copy”).
6.4 Upon receipt of the Draft Copy, the Principal shall promptly (and, at any
rate, in no more than 3 Working Days) accept or reject the Draft Copy by
notice in writing to the Contractor. Subject to clause 6.6, where the
Principal rejects any Draft Copy (or revised Draft Copy), the Contractor
will endeavour to produce revised Draft Copy for approval by the
Principal, and upon receipt of any such revised Draft Copy, the Principal
shall within the timeframes above accept or reject the revised Draft
Copy by notice in writing to the Contractor. The Principal undertakes to
provide the Contractor with such information as the Contractor may
reasonably request to facilitate the performance by the Contractor of its
obligations in this clause 6.
6.5 Where Design is included or otherwise stated to be free of charge in
respect of any booking, the Principal shall be entitled to the initial Draft
Copy and no more than three (3) revised drafts of the same. All further
Design work undertaken by the Contractor shall be charged to the
Principal at the Contractor’s standard rate of £250 for each subsequent
revised draft.
6.6 The Contractor shall be under no obligation to provide revised Draft
Copy to the extent that the Draft Copy or any revised Draft Copy
provided by the Contractor acting in good faith has not been approved
by the Principal by the date which is ten (10) days before the Start Date
for the relevant advertising campaign.
6.7 To the extent:
(a) that the Artwork is not provided in accordance with clause 5; or
(b) that, by the date which is at least ten (10) days prior to the Start Date,
the Principal has not approved the Draft Copy or any revised Draft Copy
in accordance with clause 6.4,
then the Principal shall be deemed to have cancelled the relevant
advertising campaign and the Principal shall be liable to pay the Fee for
the relevant campaign in full. The Principal acknowledges that time is of
the essence in the production and posting of Advertisement Copy and
that, as a result, this provision is no more than what is required to
ensure that Advertisement Copy is ready for display in good time. The
Parties further acknowledge as at the date of the Agreement that the
Fee for the relevant campaign represents a reasonable pre-estimate of
the Contractor’s loss in the event of a cancellation by the Principal fewer
than forty-two (42) days before the Start Date for such campaign.
6.8 Any Draft Copy approved by the Principal or the Agent shall be
Advertisement Copy for the purposes of the Agreement. For the
avoidance of doubt, the Contractor shall be under no obligation to
display any Draft Copy which the Principal or the Agent has not
approved in writing in accordance with this clause 6.
6.9 Any intellectual property rights in Advertisement Copy created by the
Contractor for the Principal shall belong to the Contractor. The
Contractor may grant the Principal a non-exclusive licence to use the
Contractor’s rights in the Advertisement Copy in consideration of a
licence fee of £500. For the avoidance of doubt, this licence fee does not
relate to any third party intellectual property rights in the Advertisement
Copy. However, to the extent that the Contractor has licensed in third
party intellectual property rights for the purpose of creating and
displaying the Advertisement Copy (for instance, stock library images),
the Principal would need to license these directly from the relevant third
party(s).
7. PRINTING
Provided that Artwork is supplied to the Contractor in accordance with
clause 5, the Contractor will procure the printing of Advertisement Copy
if specified in the Order Confirmation.
8. CHARGES
8.1 In consideration for the display of Advertisement Copy, the Principal will pay the Fee to the Contractor on the Due Date. Payment terms including Fee and Due Date shall be as specified by the Contractor in the
Order Confirmation.
8.2 If Fees are not paid by the Due Date the Contractor may without
prejudice to any other remedy it may have and without prejudice to the
Principal's obligation to pay the Fees refuse to display any
Advertisement Copy or withdraw Advertisement Copy then on display.
8.3 Original invoices shall be sent to:
(a) the Principal; or
(b) where an Order has been submitted by an Agent in compliance with
clause 2.2, to the Agent (or to such person as the Agent may nominate in
the relevant Order, with copy invoices to the Agent), and any such
invoice shall clearly identify the Principal for whom the Agent is acting,
provided always that appointment of the Agent will not affect the
Principal's obligation to pay Fees on the Due Date.
8.4 In the event of failure by the Principal or the Agent to comply with any of the provisions of this clause 8, the Parties agree that the Contractor may
by notice in writing to the Principal or the Agent require that:
(a) any further Orders placed by or on behalf of such Principal; and
(b) any Orders placed but in respect of which at least 15 Working Days
remain from the date of the notice to the Start Date (both dates
inclusive), are paid at least 10 Working Days prior to the Start Date (or such longer time as the Contractor in its absolute discretion may determine), and any payment terms so notified to the Principal or Agent shall replace the payment terms set out in any existing Order and/or Confirmation of
Order.
8.5 In respect of any Fees not received by the Contractor by the Due Date
(“Unpaid Fees”), the Principal will pay the Contractor interest at a rate of
four percent (4%) above the Bank of England base rate from time to
time. In addition, the Principal agrees that the Contractor shall be
entitled at its discretion to engage a third party to take any action which
the Contractor shall reasonably require in order to ensure that the
Unpaid Fees are paid, and the Principal agrees to indemnify and keep
indemnified the Contractor for all and any losses, costs, claims, liabilities,
damages, demands and expenses suffered or incurred by the Contractor
or any third party appointed by or on behalf of the Contractor in
connection with the enforcement of the Principal’s payment obligations
under the Agreement.
8.6 The Contractor shall be entitled but not obliged at any time or times
without notice to the Principal to set off any liability of the Principal to
the Contractor against any liability of the Contractor to the Principal (in
either case howsoever arising and whether any such liability is present
or future, liquidated or unliquidated and irrespective of the currency of
its denomination) and may for such purpose convert or exchange any
currency. Any exercise by the Contractor of its rights under this clause
shall be without prejudice to any other rights or remedies available to
the Contractor.
8.7 All sums payable under this or pursuant to this Agreement are exclusive
of VAT. Accordingly, the payer of any such sum shall, subject to the
presentation of a valid VAT invoice, pay such VAT being properly
chargeable in addition to the sum otherwise due.
9. WARRANTIES, LIABILITY AND INDEMNITY
9.1 The Contractor accepts full responsibility for compliance with statutory
and other legal requirements so far as concerns the use and
maintenance of Sites.
9.2 The Principal warrants and undertakes that:
(a) all Advertisement Copy will comply with the Advertising Standards, the
Copy Guidelines and any restrictions imposed by the Landlord relating to
the relevant Sites made known to the Principal by the Contractor prior to
the delivery of such Advertisement Copy;
(b) it will be responsible for obtaining and paying for all necessary licences
and consents for the posting and/or displaying and/or reproduction of
any Artwork or Advertisement Copy or copyright material contained in
or the appearance of any person in its Artwork or Advertisement Copy;
(c) neither the Artwork nor the Advertisement Copy nor any part of either
will infringe the copyright or other intellectual property rights of, or
defame, any person;
(d) no Advertisement Copy will contain any worm, virus, Trojan horse or
other harmful content and will not enable unauthorised access to the
Digital Advertisement System; and
(e) it maintains adequate virus protection and security measures to protect
its IT systems and any Artwork or Advertisement Copy provided or to be
provided to the Contractor.
9.3 The Principal will indemnify and keep the Contractor (in respect of itself and its employees, directors, subcontractors and agents) indemnified
against all actions, proceedings, costs, damages, expenses, penalties,
claims, demands and liability (including legal fees) incurred and arising
from any breach by the Principal of the above warranties or any other
term of the Agreement.
9.4 The Contractor shall have the right to refuse to display or to continue to display any Advertisement Copy which does not or which in the
Contractor's opinion may not comply in all respects with the Principal’s
warranties and undertakings detailed in clause 9.2 above and elsewhere
in the Agreement. In such event the Contractor shall not be liable to the
Principal for any damage loss or expense whatsoever and in addition to
any remedy and/or damages and/or loss that may be claimed by the
Contractor against the Principal, the Fees corresponding to display of
such Advertisement Copy will be due in full notwithstanding that the
Advertisement Copy has not been displayed.
9.5 Subject to clause 9.6 below the due performance of any Agreement is
subject to suspension variation or cancellation by the Contractor (in
whole or in part) owing to Acts of God, strikes, lockouts, legal
restrictions, electricity supply failures, or the loss of any Sites which were
included in the Agreement or for any other reason beyond the
Contractor’s control. In the event of suspension variation or cancellation
for any of the foregoing reasons the Contractor shall be entitled to be
paid by the Principal the full Fees corresponding to the Sites in question
up to and until the time at which such suspension, variation or
cancellation occurs but the Contractor shall not be liable to pay any
damages losses or expenses to the Principal as a result or in respect of
such suspension, variation or cancellation.
9.6 The Contractor shall not be liable to give credit for Fees corresponding to and in respect of any damage to any Advertisement Copy or incorrect
display of any Advertisement Copy or non-illumination of a display or
faulty moving displays if the defect is remedied within five (5) Working
Days after receipt of notification. To the extent that the Principal is
responsible for the production of Advertisement Copy, this deadline will
be extended if the Contractor does not have sufficient replacement
Advertisement Copy in stock to remedy the defects until the date which
is five (5) Working Days after such stock is made available by the
Contractor.
9.7 The Contractor shall not be liable for loss of or damage to or any adverse impact on the display of any Advertisement Copy as a result of any Act of God, bursting or overflowing of water tanks, pipes or other apparatus, or closure of or restrictions on any transport system. The Contractor shall not be liable for failure to display or interruptions to the display of digital Advertisement Copy due to viruses, worms, Trojan horses or other malicious content.
9.8 Subject to clause 9.13, each claim including any purely contingent claim
(“Claim”) arising as a result of the breach by the Contractor of its
obligations under this Agreement shall be submitted (or in the case of
any contingent claim, provisionally notified) to the Contractor in writing
within twenty-eight (28) days following the end of the period of display
of the relevant Advertisement Copy with sufficient information to enable
the Contractor to consider the Claim. The Contractor shall have no
liability in respect of any Claim submitted or notified after that date.
9.9 Without prejudice to clauses 9.12 and 9.13, if the Contractor shall be
liable to the Principal under the Agreement, the Contractor’s liability
shall not exceed the amount of the Fees payable under the Agreement.
9.10 In the event of any agreed errors by the Contractor in the performance of its obligations under the Agreement, the error(s) may be remedied by the Contractor by an overshow of Advertisement Copy, the display of additional Advertisement Copy (including new artwork), the substitution or addition of Sites, or any of these. Substitution or extension will constitute a good discharge of the Contractor’s obligations to display
Advertisement Copy.
9.11 The terms of the Agreement set out the full extent of the Contractor's
obligations and liabilities in respect of the display of Advertisement Copy
and the provision of the Production Services. Without prejudice to
clause 9.13, the Contractor shall have no liability to the Principal in
respect of any discrepancy between the terms of this Agreement
(including these Terms and Conditions) and any statement made to the
Principal or the Agent on which the Principal relied in entering into the
Agreement (unless such untrue statement was made in the knowledge
that it was untrue). Accordingly, any condition, warranty or other term
concerning the display or failure to display Advertisement Copy or the
provision or failure to provide the Production Services which might but
for this clause 9.11 be implied into or incorporated into the Agreement
or any collateral contract (including the implied terms of satisfactory
quality and fitness for purpose), whether by statute, common law or
otherwise is hereby excluded.
9.12 Without prejudice to clause 9.13, the Parties agree that the Contractor shall not be liable to the Principal for:
(a) any loss of profit, including for a loss of profits on contracts; or
(b) any indirect or consequential loss or damage howsoever caused,
in each case whether or not the Contractor has been advised of the
possibility of such loss.
9.13 Nothing in the Agreement shall exclude or limit the Contractor's liability for the tort of deceit or for death or personal injury caused by its
negligence.
10. ALLOWANCE FOR NON-DISPLAY
10.1 Subject to clauses 4.4, 9.4, 9.10, 10.3 and 18, if any Advertisement Copy approved by the Contractor is not, following such approval, displayed for the full Display Period of the relevant advertising campaign, then the
Contractor shall make to the Principal an allowance of the proportionate
part of the media fee payable by the Principal for the part of the Display
Period during which the Advertisement Copy was not displayed. For the
purpose of assessing the allowance, the Contractor shall take into
account the proportion of Advertisement Copy not displayed on each
day of the Display Period. Save as expressly set out in this these Terms
and Conditions the Contractor shall not be liable for damages or
compensation for any loss or expense whatsoever or inconvenience to
the Principal.
10.2 Any compensation which the Parties agree is owing under clause 10.1
may be satisfied by the Contractor by way of an overshow of
Advertisement Copy, the display of additional Advertisement Copy
(including new artwork), the substitution or addition of Sites, or any of
these. In the event of a shortfall in Impressions based campaigns -the parties hereby agreed that the campaign shall continue until the booked amount of impressions has been displayed. Any such display by the Contractor will constitute a good discharge of the Contractor’s obligations under clause 10.1.
10.3 For the purposes of clause 10.1, no compensation shall be payable in
respect of any day(s) of the Display Period to the extent that the
Contractor has displayed at least 95% of Advertisement Copy due to be
displayed on such day(s).
11. CANCELLATION AND TERMINATION
11.1 The Principal may cancel an advertising campaign under the Agreement by notice in writing to the Contractor ONLY by giving notice in writing by email to cancellations@polaewon.com
(a) in respect of a campaign for the display of Special Advertisements, only
on the basis that the Principal remains liable to pay the Fee in respect of
such campaign(s) in full; and
(b) in respect of a campaign other than for the display of Special
Advertisements:
(i) provided that notice of cancellation is duly given at least thirty (30) days before the Start Date for the relevant campaign there is no charge.
If Notice of Cancellation is given in the 30 days before the original start date of the campaign the Contractor reserves the right to charge 50% of the campaign fee, in the case where the space cannot be resold. The Contractor shall make every reasonable effort to re-sell said space, within the confines of their normal procedures.
Once the campaign has started 90 days notice must be given to terminate the contract. In order for cancellation to have been deemed served, the Principal must be able to provide proof of email to the address Cancellations@polaewon.com. It is recommended that a delivery receipt is requested when sending. In the event that the unexpired portion is less than 90 days at the point of cancellation, the remainder of the campaign shall be charged and payable.
The Principal acknowledges that the cancellation charges set out above
represent a reasonable pre-estimate of the Contractor’s loss in the event
of a cancellation by the Principal fewer than thirty (30) days before the
Start Date for the relevant campaign.
11.2 The Contractor may terminate the Agreement forthwith by notice in
writing to the Principal if:
(a) the Principal shall become bankrupt or commit an act of bankruptcy or
make any assignment for the benefit of his creditors or enter into any
arrangement with his creditors or being a company shall become
insolvent or if any petition for the winding up or administration of the
company is presented or if any other step is taken for the purposes of
the appointment of an administrator or an administrative receiver of the
company or if any steps are taken or negotiations commenced by the
company or by any of its creditors with a view to proposing any kind of
composition, compromise or arrangement involving the company and its
creditors; or
(b) the Principal ceases or in the Contractor’s reasonable opinion threatens
to cease to carry on business;
(c) if any monies to be paid by the Principal to the Contractor shall be in
arrears for twenty-one (21) days; or
(d) if there has been a breach by the Principal of any terms of the
Agreement; or
(e) in the circumstances described in clause 18.
12. CONSEQUENCES OF TERMINATION
12.1 Following termination of the Agreement or cancellation of an advertising campaign the Principal will pay to the Contractor forthwith all
outstanding Fees plus interest pursuant to clause 8.5 (pro-rated over the
period from the date the amounts became due and payable until the
date such amounts were received by the Contractor).
12.2 Any termination of the Agreement and payment of Fees due shall be
without prejudice to any other right of action or remedy which the
Contractor may have under the Agreement or at law.
12.3 In the event of termination under clauses 11.2(a) or 11.2(b) the
Contractor may continue to display any Advertisement Copy and may
enter into any agreements with third parties as the Contractor considers
appropriate to secure payment for continuing such display.
12.4 In the event of a termination by the Contractor in accordance with
clause 18 or the non-display, removal or discontinuance of display in
accordance with clause 5.9, the Contractor shall be entitled to be paid by
the Principal the full rate for the Sites in question up to and until the
time at which the display is discontinued together with any other Fees
due and owing by the Principal to the Contractor. The Contractor shall
not be liable to pay any damages losses or expenses to the Principal as a
result or in respect of such termination, non-display, removal or
discontinuance, or any suspension, variation or cancellation of
advertising.
13. HEADINGS
The headings are for reference only and do not form part of these
conditions.
14. VALIDITY
If any provision of these Terms and Conditions or the Agreement is held
by any court or other competent authority to be void or unenforceable
in whole or part, the other provision of these Terms and Conditions
and/or the Agreement and the remainder of the affected provisions shall
continue to be valid.
15. SURPLUS MATERIAL
15.1 If any Advertisement Copy in the Contractor’s possession is not collected by or on behalf of the Principal within ten (10) days from the end of the
Removal Period for the relevant advertising campaign then the same
shall become the Contractor’s property and be disposed of in such
manner as the Contractor shall in its absolute discretion decide.
15.2 Any digital copies of Artwork or Advertisement Copy relating to an Order in the Contractor’s possession will be kept on file for two years unless instructed by the Principal to be deleted, after which time such copy
shall be disposed of in such manner as the Contractor shall decide. The
Principal hereby grants the Contractor a revocable non-exclusive licence
of the Principal’s intellectual property rights in such Artwork and
Advertisement Copy for the purpose of giving effect to this clause.
16. NOTICES
16.1 All notices under the Agreement must be given in writing, in English and be delivered by courier, recorded delivery, facsimile or email to the
address of the other Party set out on the Order Confirmation or to the
most recent address, e-mail address, or facsimile number as may have
been subsequently notified to the other Party in writing.
16.2 A notice shall be deemed to have been duly given:
(a) if delivered by courier, at the time of delivery;
(b) if sent by recorded delivery, 48 hours after posting if the recipient of the notice is within the UK or 5 days if the recipient of the notice is outside
the UK; and
(c) if sent by facsimile or email, upon transmission to the correct address,
provided such notice is confirmed within 48 hours by either courier
delivery or posting a copy by recorded delivery to the appropriate
address, provided that if the date on which a notice is received is not a Working Day, that notice will instead be deemed to be duly given on the next Working Day.
16.3 Notices to the Contractor must be addressed to the Customer Service
Department and copied to the Legal Director (UK and Ireland).
17. NOVATION
Except as provided herein, neither the Contractor nor the Principal may
assign transfer, charge or part with all or any of its rights and/or
obligations under the Agreement, save that:
(a) The Principal agrees and acknowledges that the Contractor shall be
entitled at any time to assign or transfer all or any of its rights or
obligations under the Agreement to the extent that such rights or
obligations relate to the display of any Advertisement Copy on the
Landlord’s property;
(b) The Principal shall, at the Contractor’s request and expense, cooperate
with the Contractor to procure the novation of the Agreement to the
Landlord or any other party nominated by the Landlord on such terms as
the Contractor may require in relation thereto and shall execute such
documentation and take such other action as the Contractor may
request in relation to such novation.
18. REMOVAL FOR PURPOSES OF LANDLORD'S UNDERTAKING
If the Landlord at any time in its absolute discretion requires the display
of Advertisement Copy at his property to be interrupted or discontinued
then the Contractor may interrupt or discontinue such display of
Advertisement Copy without prior notice to the Principal and upon any
such action of the Landlord the Contractor may terminate the
Agreement whether wholly or in part notwithstanding anything therein
contained. In the event of such termination, the Contractor’s liability is
limited as outlined in clause 12.4 above.
19. JURISDICTION AND GOVERNING LAW
The Agreement shall be governed by and construed in accordance with
English Law and the parties agree to submit to the exclusive jurisdiction
of the English Courts.
20. AGENCY, PARTNERSHIP
The Agreement shall not constitute or imply any partnership, joint
venture, agency, fiduciary relationship or other relationship between the
Parties other than the contractual relationship expressly provided for in
this Agreement.
21. VARIATION OF TERMS AND FUTURE ORDERS
21.1 Any amendment to the Terms and Conditions, or any other term of this Agreement, must be made in writing and signed by or on behalf of the
Principal and the Contractor.
21.2 The Contractor reserves the right to revise its standard terms and
conditions from time to time, on the basis that any order or agreement
entered into will incorporate the Contractor’s standard terms and
conditions at the relevant time. Accordingly, the Principal and (if
appropriate) the Agent should ensure that they review the standard
terms and conditions provided to the Principal or the Agent (including
these Terms and Conditions) prior to entering into any order or
agreement with the Contractor. The Contractor will post any revised
terms and conditions on the Alight Media website
(polaewon.com). The Principal’s or the Agent’s
placement of an order after any such revision has been made will be an
acceptance by the Principal or the Agent (as appropriate) of the terms
existing at the relevant time.
22. ENTIRE AGREEMENT
The Order, the Order Confirmation and these Terms and Conditions
together set out the whole agreement between the Parties relating to
the subject matter hereof and supersede any and all prior quotes,
proposals, options, agreements, arrangements and understandings
between the Parties relating to that subject matter. Accordingly, all prior
terms or agreements relating to such subject matter, whether or not
agreed or offered and all conditions and warranties whether express or
implied, statutory or otherwise and all representations, statements,
negotiations, understandings and undertakings either written or oral are
superseded by the Agreement (save only in respect of rights and
liabilities which have accrued in respect of any such prior agreements
which are so superseded) and the Parties hereby acknowledge that no
reliance is placed on any such representation made but not embodied in
these documents.
23. WAIVER
No delay, neglect or forbearance on the part of either Party in enforcing
against the other party any term or condition of the Agreement shall
either be or be deemed to be a waiver or in any way prejudice any right
of that party under the Agreement. Except as expressly set out in these
Terms and Conditions, no right, power or remedy in the Agreement
conferred upon or reserved for either Party is exclusive of any other
right, power or remedy available to that Party.
24. CONFIDENTIALITY
Each Party will maintain the confidentiality of the other Party's
Confidential Information (and the Principal shall procure that the Agent
maintains the confidentiality of the Contractor’s Confidential
Information) and shall not, without the prior written consent of the
other, use, disclose, copy or modify the other Party's Confidential
Information other than as necessary for the performance of its rights
and obligations under the Agreement. "Confidential Information" shall
mean in relation to the other Party, information (whether in oral,
written or electronic form) belonging or relating to that Party, its
business affairs or activities which is not in the public domain and which
(i) is marked as confidential or proprietary; (ii) the receiving Party is
advised is of a confidential nature; or (iii) due to its character or nature,
a reasonable person in a similar position under similar circumstances
would treat as confidential. The Contractor's Confidential Information
includes the Fees payable under the Agreement.
25. EXECUTION
The sending of an Order in writing by or on behalf of the Principal shall
constitute an offer to the Contractor and provision of an Order Confirmation to the Principal or the Agent (as appropriate) shall constitute an acceptance (or counter-offer capable of acceptance by the Principal’s
conduct) by the Contractor on the terms of the Order Confirmation.
An Agreement will be executed by sending of the Order by the Agent or
the Principal and the sending of an Order Confirmation by the Contractor.
26. CREDIT CHECKING
In applying for a credit account, the Agency / Principal accepts that the Contractor will perform a Credit Check and that the results of the check will form the basis of the payment terms offered by the Contractor.. The Agency / Principal may request a copy of said check. All checks are done in line with GDPR and this information shall be deemed Confidential, despite being in the public domain.