Advertising T's & C's
Exmouth AiR Advertising Terms and Conditions
The following words and phrases used in this Agreement have the following meanings, and the singular shall include the plural: “Advertisement” means all and any advertising material provided by you or on your behalf for broadcast, transmission, publication or other delivery on the Media Platforms;
“Advertiser” means the party identified as such in the Media Plan or otherwise a party booking a Campaign;
“Advertising Agency” means the advertising agency (if any) acting on behalf of the Advertiser;
“Agreement” means the agreement between you and us relating to the Campaign and comprises the Media Plan and these Terms and Conditions; references to “broadcast” shall be deemed to include broadcast, transmission, publication, use or other delivery (as applicable) on all and any relevant Media Platforms;
“Campaign” means the delivery of the Advertisement on the Media Platform(s) according to the schedule and during the time period agreed between you and us;
“Fee” means the sum payable by you to us in relation to the Campaign;
“Exmouth AiR” means Exmouth AiR Radio Limited, company number 06012335, of Salterton Road, Exmouth, Devon, EX8 2NS;
the words "include" and "including" shall not be interpreted as limiting the generality of any foregoing words;
“IPR” means any trade marks, copyright, moral rights, performance rights, goodwill, confidential information, trade secrets and all or any other intellectual or industrial
property rights, both registered and unregistered anywhere in the world, including any renewals and extensions and including any such rights discovered or invented after the date of this Agreement;
“Media Platform” means all and any of the radio station, website, mobile or other platforms on which the Campaign is being broadcast;
“Media Plan” means the document(s), including the agreed commercial terms and delivery schedule, entered into between you and us in respect of the Campaign;
“Terms and Conditions” means these Exmouth AiR Advertising terms and conditions and references to Clauses herein shall be to Clauses of these terms and conditions;
“we”, “us” and “our” means Exmouth AiR Radio including any successors in title; “you” and “your” means the Advertiser and/or Advertising Agency (as applicable and
being jointly and severally liable for all obligations contained herein) including any successors in title, assigns and Group Companies.
2.1 You agree that you will pay the Fee and we will provide the Campaign on the terms of this Agreement. Where the Agreement is not signed, you will be deemed to have agreed to, and will be bound by, the terms of this Agreement by booking the Campaign with us.
3. The Campaign
3.1 You must deliver the Advertisement to us in accordance with our delivery timetable and technical requirements or as otherwise notified to you by us from time to time.
3.2 Following successful delivery of the Advertisement to us in accordance with Clause 3.1, we shall broadcast the Campaign subject to (i) our approval over the content of the Campaign; (ii) availability on the relevant Media Platform(s) (as applicable) and (iii) the compliance requirements set out in Clause 6.
3.3 Any changes required to be made to the Campaign for any reason whatsoever, including changes required due to any failure to comply with the provisions of Clause 3.1 and/or 3.2, shall be agreed between you and us. In the absence of agreement, we reserve the right not to broadcast the Advertisement. Further, we reserve the right to modify the scheduled times and dates of the whole, or any part, of the Campaign at our absolute discretion.
3.4 We may, at any time and without incurring any liability to you whatsoever, discontinue or decline to broadcast the Advertisement or run the Campaign without giving any reason in which case we shall refund any part of the Fee that has been paid and which relates to the part (or all) of the Campaign not broadcast by us.
3.5 Where the Media Plan specifies the level of on air impacts likely to be achieved as a result of the Campaign, such impacts and/or impressions are guaranteed to a variance of +5/-5%.
3.6 If, for any reason other than by reason of your default (in which case we shall bear no liability for the following), the Campaign (i) is broadcast missing a material element; (ii) is broadcast containing a material error; or (iii) fails to achieve the number of spots or the level of impact or impressions specified in the Media Plan, our liability will be limited, at our option, to one of the following:
3.6.1 providing you with broadcast opportunities for the Campaign of a value equal to the shortfall; or
3.6.2 making a pro-rata refund of, or reduction in, the Fee in relation to the missing element(s).
4. Fees and Payment
4.1 If we have approved you as a credit customer, we will invoice you for the Fee monthly in arrears at the end of each calendar month during the Campaign unless otherwise agreed in writing, calculated according to the proportion of the Campaign broadcast during that month. We reserve the right to withdraw or change any credit arrangement extended to you at any time, in which case we will invoice you in accordance with Clause 4.2.
4.2 If we have not approved you as a credit customer, we will require you to pay the Fee in advance of the scheduled start date of the Campaign, and will invoice you either for the entirety of the Campaign on the date of the Agreement or monthly in advance calculated according to the proportion of the Campaign due to be broadcast that month, at our discretion.
4.3 The Fee has NO VAT Payable.
4.4 You shall make payment in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever.
4.5 In respect of any payment to be made under this Agreement, time shall be of the essence.
4.6 If you fail to pay the Fee on the due date for payment we may:
4.6.1 refuse to broadcast, or immediately cease broadcasting, the Advertisement and/or Campaign without any obligation to you and you shall have no claim against us; and/or
4.6.2 terminate the Agreement for material breach in accordance with the provisions of Clause 9.2.1; and/or
4.6.3 charge you interest at a rate of 5% per annum above the base lending
rate from time to time of HSBC Bank on any amount not paid by the due date for payment. Interest is calculated on a daily basis and accrues from the due date for payment until receipt by us of the full amount (including any accrued interest) whether before or after judgement. Both parties acknowledge and agree that the interest payment set out in this Clause is, in the context of the activities contemplated under this Agreement, a "substantial remedy" (as this expression is used in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time)).
4.7 The existence of a query on any item in an invoice shall not affect the due late of payment of the balance of the invoice. You must notify us of any query within 10 days of the date of invoice. Invoices may not be queried after this time. Any amount queried and withheld by you will be subject to the full rate of interest in Clause 4.6.3, which will be charged in the following month’s invoice, unless resolved in your favour.
4.8 We are entitled to set-off monies held by us for you against any monies due by you to us.
5.1 Neither party shall acquire any rights or interests in the other party’s IPR as a result of this Agreement.
5.2 To the extent that any IPR in the Advertisement is not owned or controlled by us (“Non-Exmouth AiR IPR”), you grant to us (and/or, to the extent that the Non-
Exmouth AiR IPR is not owned or controlled by you, procure from any relevant third party the grant to us of) an irrevocable, non-exclusive, royalty-free licence to use the Non-Exmouth AiR IPR during the Campaign so that we can broadcast the Advertisement in accordance with the terms of this Agreement.
6. Compliance Requirements
6.1 It is your responsibility to ensure that your Advertisement complies with:
6.1.1 all legislation relevant to your advert being broadcast (including the Communications Act 2003) and to the product or service being advertised;
6.1.2 any relevant regulations or codes of practice (whether voluntary or obligatory) including the UK Code of Broadcast Advertising (BCAP) and the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP) (as applicable);
6.1.3 Radio Advertising Clearance Centre (“RACC”), or our own internal, clearance (as applicable in accordance with the provisions of Clause 6.3); and
6.1.4 all and any technical requirements as notified from us to you from time to time, including that any materials provided by you will be in a format prescribed by and/or acceptable to us.
6.2 We are legally prohibited from broadcasting any Advertisement that does not comply with the requirements of clauses 6.1.1 to 6.1.4. We can provide our opinion on compliance with radio advertising regulations but we cannot guarantee compliance. If you are in any doubt about the compliance of your Advertisement you should seek external legal advice.
6.3 If, during the course of the Campaign, we have reason to believe that the Advertisement, or the product or service featured, is not sufficiently compliant, we reserve the right to suspend the Campaign and cease broadcasting the Advertisement until the compliance issues are resolved. If the parties are unable to resolve these issues, we further reserve the right to cancel the Campaign and refuse to broadcast the Advertisement again. In these circumstances, you will not be entitled to any refund for that part of the Campaign already aired. If, in our view, the Advertisement is not compliant, you will not be entitled to any refund of any of the Fee and shall be liable for the Fee in full.
7. Limitation of Liability
7.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
7.2 Nothing in this Agreement limits or excludes our liability for:
7.2.1 death or personal injury resulting from our negligence; or
7.2.2 fraud or fraudulent misrepresentation.
7.3 Subject to the provisions of Clauses 7.1 and 7.2:
7.3.1 we shall not under any circumstances be liable for (i) loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business; or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses; and
7.3.2 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the amount of the Fee under this Agreement.
7.4 Without prejudice to clauses 7.1 to 7.3, we shall not under any circumstances be liable for any loss, damage, unauthorised use or delay in delivery of any
recordings, scripts or other material relating to the Advertisement. Advertising material may be destroyed by us after a period of three months following the end of the Campaign without further reference to you.
8. Warranties and Indemnities
8.1 You warrant and undertake to us that:
8.1.1 you own or have obtained and paid for and will maintain all necessary licences and consents, rights and waivers required for the broadcast of the Campaign including any music and performing rights;
8.1.2 the Campaign will not (i) infringe the IPR of, be defamatory of or otherwise infringe any rights of any third party or give rise to a claim for passing off or (ii) be inaccurate, misleading, obscene or offensive;
8.1.3 the Campaign complies with the requirements of Clauses 6.1.1 and 6.1.2;
8.1.4 the Campaign is legal, decent, honest and true;
8.1.5 to the best of your knowledge, information and belief any claims made in the Advertisement are accurate and fair and can, if required, be substantiated by documentary evidence;
8.1.6 the products or services which are the subject of, and/or which are reasonably associated with, the Campaign are safe and fit for their intended purpose and comply with all legal and regulatory requirements or codes of practice (whether voluntary or obligatory) including those relevant to your particular industry.
8.2 You will fully indemnify, hold harmless and keep fully indemnified and held harmless us and our Media Platforms against any and all actions, proceedings, losses, costs, damages, fines, expenses, penalties, claims,demands and liabilities (including legal and other professional fees and damages for loss of reputation and goodwill) arising from any breach of the above warranties or in any manner whatsoever resulting from this Agreement and/or the Campaign.
8.3 You will notify us immediately on becoming aware of any fact or circumstance which could constitute a breach of Clause 8.1 or triggers the indemnity in Clause 8.2. If we in our sole discretion consider that you are in breach of the warranties contained above, we may suspend or withdraw the Campaign and you shall pay the entire outstanding amount of the Fee immediately.
9.1 Either party may terminate this Agreement by giving to the other notice in writing no later than 28 days before the scheduled start date of the Campaign. If you terminate in accordance with this clause 9.1 you will incur a cancellation charge of 25% of the Fee, payable in full on the date of termination.
9.2 Either party may terminate this Agreement immediately by notice in writing to the other party if the other party:
9.2.1 is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 14 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it;
9.2.2 ceases, or threatens to cease, to carry on business;
9.2.3 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors;
9.2.4 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
9.2.5 (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect, (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies.
9.3 Termination or expiry of this Agreement shall not affect a party's accrued rights and obligations as at the date of termination. Clauses 4, 7, 8, 9 and 11 shall survive termination or expiry of this Agreement.
9.4 Subject to the provisions of Clause 7 but otherwise notwithstanding anything to the contrary stated in this Agreement, each party shall have the right to pursue any remedies available to it at law or in equity.
9.5 If we terminate this Agreement in accordance with Clause 9.2 we shall be entitled to retain or be paid (as applicable) the entire outstanding amount of the Fee.
9.6 Upon expiry or termination of this Agreement for whatever reason, except as set out in Clause 9.5, we shall be entitled to retain or be paid (as applicable) such proportion of the Fee that relates to the work carried out prior to and including the date of termination.
10. Force Majeure
10.1 We shall have no liability to you if we are prevented, hindered or delayed in carrying out any of our obligations under this Agreement by any act or thing beyond our control or any other act or event that affects or may affect our programming or campaigns (including any law or regulatory order, power failure, breakdown or failure of software or machinery, interruption of broadcast, accident, act of God, storm, fire or flood, death of royalty or other public figure, terrorist action or war, failure of sub-contractors, suppliers or abour dispute) (a “Force Majeure Event”).
10.2 If the Force Majeure Event continues for more than one month, we may terminate the Agreement with immediate effect by written notice. Any such termination shall be without prejudice to our right to be paid the Fee up to the ate of termination.
11.1 Any notice under this Agreement shall be in writing and sent by recorded delivery post or by-hand delivery at the last known address from which one party has communicated with the other in connection with the Agreement. In the case of the service of a notice by you upon us, such notice shall be addressed for the urgent attention of your contact at Exmouth AiR Radio with copies to the Managing Director (Commercial) and the Head of Legal.
11.2 Except with our prior written consent, you shall neither:
11.2.1 assign or transfer any of your rights or obligations hereunder; nor
11.2.2 disclose any information as to the terms of this Agreement or any information regarding the content, materials and deliverables produced under this Agreement other than content, materials and deliverables which are broadcast in accordance with the Campaign.
11.3 To the extent permitted by law, the invalidity, illegality, or unenforceability of any provision in this Agreement does not affect or impair the continuation in force of the remainder of the provision or Agreement.
11.4 We may, in our absolute discretion, conduct research relating to the Campaign and you acknowledge that we may use any findings in relation to future campaigns.
11.5 We shall be entitled to refer to your association with the Campaign and us to promote our company and our advertising business generally.
11.6 We reserve the right to vary our Terms and Conditions from time to time, provided that the Terms and Conditions in force at the date of this Agreement shall apply to it. No variation of the terms of this Agreement shall be effective unless specifically approved in writing between duly authorised representatives of each party.
11.7 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, misrepresentation, assurance or warranty (in each case whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
11.8 Any failure or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
11.9 This Agreement does not create any right or benefit enforceable by any person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999).
11.10 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
11.11 This Agreement shall be governed by and interpreted in accordance with the law of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts in London, England.
Last updated: July 2020
Registered Office: ExmouthAiR Radio Limited, Salterton Road, Exmouth, Devon, EX3 0QT
Registered in England: No. 06012335
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