TERMS AND CONDITIONS FOR ADVERTISING
(ADOPTED MAY 2012)
Advertising Services: The advertising services to be provided by the Publisher as specified in the Offer. Advertisement: Any advertisement that the Publisher shall make available to the public through any Media in accordance with this Contract. Advertiser: The company, partnership, sole trader or individual who books the Advertising Services, and whose details are set out in the Offer. Advertising Period: The period during which the Publisher agrees to perform the Advertising Services as specified in the Offer. Cancellation Date: The date(s) specified in the Offer as being the latest date when the Advertiser may cancel the Contract. Conditions: These terms and conditions, as varied from time to time by the Publisher. Contract: The contract between the Publisher and the Advertiser incorporating the Conditions and the Offer, as defined in paragraph 2.2. Copy: The advertising copy or any other content or materials supplied by the Advertiser to the Publisher (whether in the form of artwork, photographs, graphics, audio or visual material, illustrative material, articles, features or words) which either constitutes the Advertisement or may be used by the Publisher to create an Advertisement. Copy Deadline: The time and date indicated on the Offer, which shall be the latest date and time by which the Advertiser must supply the Copy to the Publisher. Group Company: Any subsidiary or subsidiary undertaking or holding company or parent undertaking of the Publisher and, if applicable, the Third Party and any subsidiary or subsidiary undertaking of that holding company or parent undertaking from time to time each as defined in section 1159 Companies Act 2006 (as amended or superseded). Impressions: The number of times that an Advertisement is displayed to a visitor to a Website each month (or part thereof) during the Advertising Period. Intellectual Property: Any copyright, extended or revived copyright, design right, registered design right, patent, performer’s property right, trademark, brand, logo, database right or any similar right exercisable in any part of the world, where registered or unregistered, including any application for registration of any patent, trademark, registered design or similar registrable rights in any part of the world. Magazine: The magazine published by the Publisher in respect of which the Publisher has agreed to perform the Advertising Services as specified in the Offer. Media: The medium through which the Publisher will make available the Advertisements, which may include a Magazine (including digital editions), Website, event, app, newsletter, social media or other medium as set out in the Offer. Minimum Price: The minimum price payable in respect of the Advertising Services, if applicable, as set out in the Offer. Offer: The offer to provide the Advertising Services including the details of the booking, which is sent by the Publisher to the Advertiser. Price: The price payable by the Advertiser to the Publisher in respect of the Advertising Services as set out in the Offer. Principal: The Advertiser except where the Advertiser is acting as agent for or on behalf of another company, partnership, sole trader or individual, in which case that other company, partnership, sole trader or individual shall be the Principal. Publisher: Future Publishing Limited (company number 2008885) whose registered office is at Beauford Court, 30 Monmouth Street, Bath, BA1 2BW. Specification: The specification to which the Copy or Advertisement (as applicable) must adhere, as specified in the Offer. Third Party: Any party who has appointed the Publisher to sell advertising on the Third Party’s behalf. Website: The website, as specified in the Offer, which is either published by or on behalf of the Publisher or, if applicable, produced by the Third Party in relation to which the Publisher has agreed to perform the Advertising Services.
- 2.1 The Contract is made between (1) the Publisher and (2) the Advertiser and the Principal. If the Advertiser is not the Principal, the Advertiser shall be jointly and severally responsible and liable with the Principal for the obligations and liabilities of the Principal and references hereafter to the Advertiser shall include the Principal.
- 2.2 A binding contract relating to the Advertising Services will be entered into by the parties on the date on which the Advertiser confirms acceptance of the Offer. If an Offer relates to more than one Advertising Service, each Advertising Service shall be treated as a separate contract.
- 2.3 No variation of these Conditions or any Contract shall be binding unless agreed in writing and signed by an authorised representative on behalf of the Publisher.
- 2.4 The Publisher reserves the right, without liability, to cancel the Contract and/or omit any Advertisement if: (a) the Copy is not reasonably acceptable to the Publisher; or (b) the Copy is or may, in the reasonable opinion of the Publisher, be obscene, blasphemous, libellous, defamatory, indecent, inaccurate, misleading, inappropriate, in contravention of any applicable laws, rules, regulations, guidance or codes of practice or give rise to any claims or complaints from a third party; or (c) the Copy infringes or may infringe the intellectual property or proprietary rights of any person, or (d) the Advertiser is in breach of these Conditions including, without limitation, paragraph 9; or (e) the Copy does not comply with the Specification; or (f) the Media is suspended or ceases to be published or operated by the Publisher or the Third Party for any reason.
- 3.1 Performance of the Advertising Services is subject to the Copy complying with paragraph 2.4 and sufficient space or inventory being available in the Media during the Advertising Period. The Publisher gives no warranty or guarantee in relation to space or inventory availability. Nothing in these Conditions or any Contract shall prevent or restrict the Publisher from redesigning or rebranding the Media.
3.2 The Publisher shall use reasonable endeavours to perform the Advertising Services in accordance with the Offer. Notwithstanding the generality of the foregoing, the Publisher reserves the right for any reason to:
- 3.2.1 move any Advertisement within the Media to a place which, in the reasonable opinion of the Publisher, is comparable to the original place agreed with the Advertiser; or
- 3.2.2 display any Advertisement in a comparable medium to that Media stated in the Offer; or
- 3.2.3 alter the Advertising Period, provided that the revised Advertising Period is equivalent in length to that originally agreed with the Publisher, or that where a specific number of Impressions has been specified in the Offer, an equivalent number of Impressions is generated over such altered Advertising Period; or
- 3.2.4 if for any reason the Publisher is unable to insert the Advertisement on the website set out in the Offer, a website published by or on behalf of the Publisher which, in the Publisher’s reasonable opinion, is of comparable nature to that set out in the Offer.
- 3.3 The Publisher may display any adverts for products or services which compete with those of the Advertiser (“Competing Advertisement“). Without prejudice to the generality of the foregoing, the Publisher shall use reasonable endeavours to procure that the Advertisement is not displayed immediately next to a Competing Advertisement where such competing products or services have been advised by the Advertiser to the Publisher in writing.
- 3.4 The Publisher shall be under no liability whatsoever to the Advertiser or any other person if it is unable to comply with the terms of any Contract for any reason beyond its reasonable control including without prejudice to the generality of the foregoing any Act of God, war, terrorism, fire, flood, failure of the internet, failure of power supply, shortage or labour or supplies, strike or any action taken by employees, agents, sub-contractors or otherwise.
- 3.5 The Publisher shall have the right in its sole discretion to adapt, amend, vary or edit Copy so as to ensure that it complies with paragraph 2.4. Such right shall be without prejudice to any of the Publisher’s rights under these Conditions.
- 3.6 The Advertiser must notify the Publisher immediately in writing of any inaccuracy with the Copy or Advertisement.
- 3.7 It is the responsibility of the Advertiser to supply the Publisher with Copy before the Copy Deadline and the Advertiser acknowledges that time is of the essence. If Advertising Services are not performed as a result of or in relation to the Advertiser’s failure to deliver suitable Copy before the Copy Deadline, the Price remains payable in full in accordance with paragraph 9.
4. ONLINE AND DIGITAL ADVERTISING
- 4.1 The Advertiser acknowledges and agrees that the Publisher may use a third party to target the delivery of the Advertisement to those users of digital and online Media who meet certain criteria agreed between the Advertiser and the Publisher and as such the Advertisement may not be displayed to all users of such Media.
- 4.2 The Advertiser acknowledges and agrees that the Publisher may from time to time enter into deep linking arrangements with third parties, the effect of which may be to enable visitors to the Website to bypass pages displaying the Advertisement. The Publisher shall incur no liability as a result of or in relation to such deep linking arrangements and shall be under no obligation to consult with or notify the Advertiser of any such deep linking arrangements.
- 4.3 The Advertiser shall ensure that the Advertisement does not: (i) contain software or other material, data or information not owned or licensed to it; (ii) damage, interfere with or disrupt access to the Media or do anything which may interrupt or impair its functionality.
- 4.5 If the Advertiser fails to deliver suitable Copy by the Copy Deadline, the Publisher may, in its sole discretion, agree to display an Advertisement for the remainder of the Advertising Period following receipt of the Copy in which case, unless otherwise agreed, the number of Impressions to be generated during the Advertising Period, as specified in the Offer, shall be pro-rated downwards equal to the number of days the Advert is not displayed on the Website as a result of such failure.
- 4.6 If the Advertiser chooses to display an Advertisement which requires the services of a third party specialist, the Advertiser shall be responsible for all costs and expenses associated with the same, unless expressly agreed to the contrary and stated on the Offer.
5. PRINT ADVERTISING
- 5.1 For the avoidance of any doubt, the Advertiser acknowledges that the Advertisement shall appear in the print version of the Magazine only, not in any digital editions of the Magazine, unless set out in the Offer or otherwise agreed in writing between the parties.
- 5.2 If the Advertiser fails to deliver suitable Copy by the Copy Deadline, the Publisher, in its sole discretion, reserves the right not to publish the relevant Advertisement in the Magazine or to use copy from any other source.
6. CREATIVE SOLUTIONS
- 6.1 The Advertiser will give the Publisher clear briefings in a timely manner and ensure that all information and materials which the Publisher requires in order to perform the Advertising Services are complete, accurate and supplied in accordance with the timescales reasonably specified by the Publisher from time to time. If the Advertiser fails to deliver such information and materials by the timescales and in the form requested by the Publisher, the Publisher shall not be liable for any subsequent delay or errors relating to the provision of the Advertising Services.
- 6.2 To the extent that the Publisher is creating an Advertisement, or materials for use in an Advertisement, on behalf of the Advertiser, after obtaining the Advertiser’s approval of its proposal for the Advertisement, the Publisher shall, if requested by the Advertiser, submit to the Advertiser for its specific approval any copy, layouts, artwork, graphics, articles (as appropriate) and any other materials created and prepared by the Publisher in relation to the Advertisement (the “Creative“).
- 6.3 If the Advertiser rejects the Creative, the Publisher shall make such amendments as are agreed between the parties and resubmit the amended Creative to the Advertiser for approval, provided that the Advertiser shall not request more than two sets of amendments. If the Advertiser fails to respond to a request for approval of the Creative within the timescale required by the Publisher, the Advertiser shall be deemed to have approved the Creative. The Advertiser acknowledges that time is of the essence and that production deadlines may not be extended.
- 6.4 The Advertiser’s approval of the Creative, if applicable, will be the Publisher’s authority to purchase production materials and prepare proofs. The Advertiser’s approval of proofs, if applicable, will be the Publisher’s authority to publish the Advertisement in accordance with the provisions of the Contract, or such other terms as may be agreed in writing by the parties from time to time.
- 6.5 The Publisher will advise the Advertiser of any changes in the estimated costs of items or any changes in plans, schedules or work in progress previously approved by the Advertiser, including the cost of any third party specialist required in order to complete the Advertising Services. Any additional costs so advised to the Advertiser will be deemed to be approved unless the Advertiser specifically notifies the Publisher in writing that such additional costs are not approved, and the Price shall be amended accordingly. In the event that the parties are unable to reach agreement in relation to any such additional costs, the Publisher shall be entitled to cancel the Contract.
- 6.6 The Intellectual Property Rights in the Creative shall, as between the parties, vest in the Publisher unless otherwise agreed in writing in the Offer. In consideration of the Price, the Publisher grants the Advertiser an exclusive, worldwide licence to use the Creative in the Advertisement in the Media only, unless otherwise agreed in writing between the parties.
- 6.7 The Advertiser hereby grants the Publisher a non-exclusive licence to use the Advertiser’s trademarks, logos and any other Intellectual Property Rights belonging to the Advertiser for the purposes of producing the Creative and providing the Advertising Services in accordance with this Contract, and as otherwise agreed.
- 6.8 The Advertiser may ask the Publisher to amend any or all plans, schedules or work in progress and the Publisher will take all reasonable steps to comply with such request provided that thePublisher is able to do so within its contractual obligations to any third party and any relevant print and publication deadlines.
- 6.9 In the event of any cancellation or amendment referred to in paragraph 6.8 above, the Advertiser will reimburse the Publisher for any charges or expenses incurred by the Publisher to which thePublisher is committed, or any charges imposed on the Publisher by third parties arising from the cancellation or amendment. The Advertiser shall also pay the Publisher such proportion of thePrice as may be applicable for any Advertising Services already performed by the Publisher prior to cancellation or amendment to the Advertising Services.
7. WARRANTIES AND INDEMNITY
7.1 The Advertiser warrants and represents to the Publisher and if applicable, the Third Party that:
- (a) It has the power, authority and capacity to enter into the Contract with the Publisher;
- (b) The Copy will not be, and will not contain links to content that is obscene, blasphemous, libellous, defamatory, offensive, indecent, inaccurate or misleading as to price, promoting the use of illegal or illegal activities, pornographic, racist, spam mail, fraud, pyramid schemes, contrary to public policy or related to investment opportunities or advice not permitted by law or in any other way and will not contravene any applicable laws, rules, regulations or advertising codes (including, without limitation, all codes of practice issued by the Advertising Standards Authority or the Committee of Advertising Practice) and will comply with the Specification;
- (c) The Advertiser is the legal and beneficial owner of all intellectual property and proprietary rights in the Copy or it has the right to use and to permit the Publisher and if applicable, the Third Party to use and exploit the same in accordance with these Conditions and the Contract;
- (d) The use of the Copy to create an Advertisement and the publication of an Advertisement in accordance with the Offer does not and will not infringe the intellectual property or proprietary rights of a third party; and
- (e) It will comply with the terms of any contract for the sale of goods or services between the Advertiser and customers who have responded to the Advertisement.
- 7.2 The Advertiser shall indemnify the Publisher and, if applicable, theThird Party in full and on demand from and against any loss (including, without limitation, economic loss, loss of profit, loss of goodwill, loss of contracts, loss of business, loss of reputation or like loss), third party actions, causes of action, claims, demands, liabilities, costs, damage, expenses (including legal expenses incurred in enforcing this indemnity) or expenses suffered or incurred by the Publisher and, if applicable, the Third Party or any of their Group Companies or their respective employees, agents or subcontractors directly or indirectly as a result of or in relation to: (a) any act, default or omission (including negligence) of the Advertiser or any of its employees, agents or subcontractors, (b) any breach of these Conditions or the Contract by the Advertiser or any of its employees, agents or subcontractors, or (c) the reproduction, publication and/or display of any Advertisement via the Media in accordance with any Contract.
- 7.3 The Publisher makes no warranties of any kind, whether express or implied, in relation to any Website, software, app, or any digital product, including but not limited to implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, nor any implied warranty that theWebsite, software, app or digital product will meet any requirements of the Advertiser or will be uninterrupted, timely, secure or error free, nor that defects will be corrected, nor that the Website, software, app or digital product or the server or other hardware or software that makes them available are free from viruses or bugs or are fully functional, accurate or reliable. In addition, the Publisher makes no warranties or representations in relation to the number of people which may be expected to visit the Website, download or otherwise utilise any software, app or digital product.
- 8.1 Any request to cancel the Contract will only be effective if received by the Publisher in writing before the Cancellation Date. Any requests to cancel the Contract received by the Publisher after that date will have no effect unless otherwise agreed in writing by an authorised representative on behalf of the Publisher.
- 8.2 Any Advertiser who cancels part of a series booking will be charged at the rate set out on the Publisher’s rate card from time to time for the Advertising Services performed by the Publisher, and for any Advertising Services in respect of which the cancellation is received by the Publisher after the relevant Cancellation Date.
- 8.3 In the event that the Media is suspended or ceases to be published by the Publisher, the Publisher shall use reasonable efforts to inform the Advertiser as soon as reasonably possible and shall be entitled to cancel the Contract or place the Advertisement on comparable Media at the Publisher’s sole discretion without any liability whatsoever to the Advertiser. The Advertiser shall remain liable for the Price due in respect of the Advertising Services performed during the Advertising Period prior to the date on which theAdvertisement ceases to be published on the Media.
- 9.1 In respect of online Advertisements, where the Advertising Period is less than 90 days in length, the Advertiser shall pay the Publisher the Price within 30 days of the end of the Advertising Period. In all other cases, the Advertiser shall pay the Publisher the Price within 30 days of the end of each 30 day period comprising theAdvertising Period. The Publisher shall use commercially reasonable efforts to provide the Advertiser with details of theImpressions generated in the Advertising Period or 30 day period(as appropriate) (“Impression Report”).
- 9.2 The Advertiser acknowledges and agrees that the Impression Report shall be the sole and definitive measurement of the number of Impressions generated in the period covered by the report and shall be binding on the parties, save in the case of manifest error. If the Advertiser reasonably believes in good faith that the ImpressionReport contains a manifest error (which must be an inaccuracy of at least 10%), the Advertiser shall notify the Publisher forthwith and the parties shall use reasonable endeavours to identify and correct the inaccuracy (if any) and agree in good faith the number of actual Impressions created during the period covered by the Impression Report. The Advertiser shall pay the Publisher theMinimum Price in accordance with the Publisher’s standard payment terms, as amended from time to time at Publisher’s sole discretion, and following agreement of the number of Impression, the Advertiser shall pay the Publisher the balance of the amount due in relation to the agreed number of Impressions created in that period, plus Value Added Tax.
- 9.3 In respect of Advertisements published via any Medium other than asset out at paragraph 9.1 above, the Advertiser shall pay thePublisher the Price within 30 days from the date of an invoice, unless otherwise specified in the Offer.
- 9.4 The Publisher shall, at any time, without prejudice to its other rights and remedies be entitled to specify to the Advertiser alternative payment terms to those set out above. In particular, the Publisher shall be entitled to require payment in advance by the Advertiser or payment earlier than provided for at paragraph 9.1 or 9.3 above in the event that, inter alia, the result of a credit check on theAdvertiser is unsatisfactory to the Publisher or the Advertiser repeatedly makes late payments in breach of the provisions of this paragraph 9.
- 9.5 If the Advertiser fails to pay sums due to the Publisher by the due date for payment, the Publisher reserves the right to suspend the provision of the Advertising Services and to charge interest up to the date of actual payment after, as well as before, judgement at the rate under the late payment of Commercial Debts (Interest) Act (the “Act“) together with fixed sum compensation under the Act to accrue on a daily basis, compounded quarterly. The Advertiser will be liable for all expenses (including legal expenses) incurred by the Publisher in collecting overdue amounts.
10.1 Although every effort is made to avoid errors, should they occur the Advertiser acknowledges and accepts that Publisher will not be liable to the Advertiser for breach of Contract or in any other manner whatsoever where:
- 10.1.1 The error is due to inaccurate, incomplete or imprecise instructions from the Advertiser; or
- 10.1.2 The Copy has only been submitted verbally to the Publisher; or
- 10.1.3 The Copy is not supplied until after the Copy Deadline and/or the Publisher has exercised its rights under paragraph 3.3 or 4.5 above; or
- 10.1.4 The error concerns the colour reproduction of the Advertisement and the Advertiser has failed to supply a colour proof with the Copy in a form which is reasonably satisfactory to the Publisher,
AND in such circumstances, the Advertiser remains liable in full for the Price.
- 10.2 The Publisher’s aggregate liability to the Advertiser pursuant to any Contract (including these Conditions), whether in contract, tort(including negligence), breach of statutory duty or otherwise shall (except in relation to death or personal injury resulting from its negligence) be limited to the total Price payable by the Advertiser to the Publisher under that Contract in relation to the Advertising Services. The Publisher shall not be liable to the Advertiser for any special, indirect or consequential loss including, without limitation, economic loss or any loss of profit, loss of revenue, loss of contracts, loss of business, loss of goodwill, loss of reputation or like loss.
- 10.3 If the Publisher is liable to the Advertiser pursuant to these Conditions for an error of the Publisher, the Publisher shall (unless otherwise agreed in writing) either re-perform theAdvertising Services in such manner and during such period as may be agreed between the parties or, if applicable, reimburse a percentage of the Price equal to the percentage loss of response which can, in the Publisher’s reasonable opinion, be attributed to that error. For the avoidance of doubt, the Publisher’s liability to the Advertiser for such error shall be limited in accordance with paragraph 10.2.
11. GENERAL AND JURISDICTION
- 11.1 EachContract shall be governed by these Conditions (together with the Offer), which represent the entire agreement between the parties in relation to the subject matter and supersede all prior agreements and understandings between the parties. In the event of any conflict between these Conditions and any terms or conditions incorporated in any form of offer, quotation or other correspondence or documentation submitted by the Advertiser, theseConditions shall prevail.
- 11.2 The invalidity, illegality or unenforceability of any provision of these Conditions shall not affect the continuing validity, legality and enforceability of the remainder of these Conditions.
- 11.3 Nothing in these Conditions shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party the agent or employee of the other for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
- 11.4 The Advertiser shall not be entitled to assign the Contract without the prior written consent of the Publisher. The Publisher shall be entitled to sub-contract the whole or any part of its obligations under the Contract and to assign the Contract.
- 11.5 A failure or delay by the Publisher to exercising any right or remedy under the Contract shall not constitute a waiver of such rights or remedy.
- 11.6 Confirmation of the Advertiser’s acceptance of these terms shall be deemed valid acceptance of the terms of this Agreement. Any variation to the terms of this Agreement shall be agreed in writing between the parties, save that the parties specifically agree that a variation to terms set out in the Offer may be agreed by both parties by email.
- 11.7 The Contract shall be governed by the laws of England and each party submits to the exclusive jurisdiction of the English Courts save that the Publisher reserves the right to take action against the Advertiser in any other jurisdiction.
- 11.8 Subject to paragraph 11.9, a person who is not a party to the Contract shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Conditions.
- 11.9 The Third Party shall be entitled to enforce paragraph 7.2.