|
General Terms & Conditions
1. Definitions
‘Act’ means the Communications Act 2003 (as amended, modified or
re-enacted from time to time) and any regulations made thereunder.
‘Advertiser’ means the person, firm or company identified as such under
the Agreement (including its successors in title and assigns).
‘Advertisng’ means any advertising, promotional material or other content
in any format whether audio only and/or audio visual (including scheduled
advertisements, trailers, live reads, taglines or straplines) intended for
broadcast or publication on any media platform by the Company in accordance with
the Agreement whether as a stand-alone advertising campaign or advertising
associated with Sponsorship and/or Promotions.
‘Advertising Agency’ means a person, firm or company carrying on business
involving the selection and purchasing of advertising space or time for persons
wishing to advertise.
‘Agreement’ means an agreement (written or oral) between the Advertiser
and the Company for the booking of advertising time and/or on-air sponsorship
and/or promotions (including, without limitation, a completed "Company Booking
Confirmation", ‘Sponsorship and Promotions Agreement’ or other record of
such booking) and shall include these Conditions which shall be deemed
incorporated therein. References to ‘booking’ and ‘booked’ shall be construed
accordingly.
‘Ofcom’ rneans the Office of Communications or any successor or competent
regulatory body from time to time
‘Campaign’ means the advertising time booked which is the subject of the
Agreement and includes a Promotion whether associated with an advertising
campaign or otherwise
‘’Company’ means Litt Corporation Ltd (company number 5452303) whose
registered office is at Radio House, Bridge Road, Southall, Middlesex. UB2 4AT
including its successors in title, assigns and any group company, ‘group
company’ means any company of which Sunrise Radio Limited is the parent company
(including, for the avoidance of doubt, where Sunrise Radio Limited sells
advertising time on behalf of a third party).
‘Condition’ means these terms and conditions for the time being in force
(including any amendment under Condition 12.6)
‘Costs’ means the costs specified in the Agreement (which are
supplemental to the Fee) and other such costs and disbursements agreed by the
Company and the Advertiser such as for commercial production and/or creative
services in connection with a Promotion
‘Fee’ means the fee for the Campaign and or Promotion as specified in the
Agreement
‘Prizes’ means the prizes to be supplied by the Advertiser (if any) in
accordance with the Agreement
‘Promotion’ means any sponsorship or promotion which is the subject of
the Agreement and "Promotion Period" and "Pre-Promotion Period" shall be
construed accordingly.
‘’Advertiser’, shall hereinafter mean the person, firm or company by whom
an order for an advertisement booking is placed and shall also mean and include
the advertiser’s successors in title and assigns.
‘advertisement copy’ shall mean any advertising material, sponsorship
tags, promotional trailers or other material intended for broadcast by the
Company.
‘RACC’ shall mean the Radio Advertising Clearance Centre” or any
successor organisation.
‘Day’ shall mean 9am to 5pm Monday to Friday inclusive except any public
holidays.
2. Advertising Agents and Commission
2.1 An Advertiser who is an Advertising Agency shall contract as principal and
will be responsible for the payment of all amounts under the Agreement and will
be deemed to have full authority in all matters connected with the booking of
advertising time or the amendment or approval of Advertising.
2.2 Agency commission of 15% (or such other amount determined by the Company) of
the Fee (excluding VAT) is payable by way of deduction to a bona fide credit
worthy Advertising Agency recognised by the Company (in its sole discretion). No
agency commission is payable whilst sums remain due from the Advertiser after
the due date for payment and no such commission shall be paid to or shared with
any third party.
2.3 The amount of any commission shall be taken after any surcharge payable
under the provisions of Condition 4 has been applied.
3. Acceptance of Terms and Conditions
3.1 The booking of the Campaign and/or the broadcast of Advertising will be
deemed an unqualified acceptance of these Conditions by the Advertiser (whether
or not the Agreement is confirmed in writing, it will be deemed accepted by
performance). These Conditions shall govern and be incorporated into the
Agreement and shall prevail over any other terms and conditions contained or
referred to elsewhere (whether before or after receipt of these Conditions) or
implied by trade custom, practice, course of dealing or law.
3.2 The Advertiser acknowledges that where the Company sells advertising time on
behalf of a third party, the Company acts only as agent for the third party. The
Advertiser's contract, rights and remedies will be with the third party (and not
the Company) accordingly. For the purposes of this provision “third party” means
any company that is not a Sunrise Radio Limited group company.
3.3 No terms or conditions other than those set out herein or any variation
thereof agreed in accordance with condition 12 below shall be binding upon the
Company or the advertiser unless reduced to writing and signed by or on behalf
of both the Company and the Advertiser.
4. Acceptance of Advertisement
4.1 Advertising will only be broadcast if it has been approved by the Company
and if it complies with all relevant legal and regulatory requirements or codes
of practice (whether voluntary or obligatory) relating to the Advertising or its
broadcast and such technical requirements and other procedures as the Company
may require. In particular, the Advertising must comply with the Act and any
codes or regulations issued thereunder (and any amending or superseding codes or
regulations from time to time)
4.2 Advertising which is being produced by the Company shall be sent to the
Advertiser for its approval before the scheduled start of the Campaign or as
otherwise agreed by the parties. The Advertiser shall approve such Advertising
(approval not to be unreasonably withheld or delayed) or the Advertising shall
be otherwise agreed no later than 3 clear working days before the scheduled
start of the Campaign. Failure to do so may result in a delay or cancellation of
the Campaign (in the Company’s sole discretion) but shall not affect the
Advertiser's obligation to pay the Fee (and Costs).
4.3 Advertising which is not being produced by the Company must be received by
the Company not less than 5 working days before the scheduled start of the
Campaign unless the Company agrees otherwise in writing. Receipt of such
Advertising shall not be deemed to have been made until the Company’s technical
requirements and other procedures have been complied with (including, if so
required by the Company, evidence that the Advertising has been approved by the
Radio Advertising Clearance Centre or such other organisation approved by the
Company from time to time). If Advertising is not received within the specified
time (or is deemed not to have been received), the acceptance of Advertising
will be in the absolute discretion of the Company and the Advertiser shall
remain liable to pay the Fee (and Costs) for the entirety of the Campaign
whether or not the Advertising is broadcast.
4.4 The extent and content of Advertising associated with a Promotion shall be
within the Company’s discretion (the Company will retain full editorial
control), subject to the general substance of the same having been agreed with
the Advertiser prior to broadcasting (such agreement not to be unreasonably
withheld or delayed).
4.5 In respect of a Promotion, the Company will produce a promotional trailer
(“the Trailer). The script for the Trailer shall be approved by the Advertiser
(such approval not to be unreasonably withheld or delayed) in good time before
the scheduled start of the Pre-Promotion Period. Failure to do so may result in
a delay or cancellation of the Promotion (in the Company’s absolute discretion)
but shall not affect the Advertiser’s obligation to pay the Fee (and Costs).
4.6 Advertising shall only be broadcast if:-
- the Advertiser has obtained all necessary licences and consents for the
placement of any material protected by any intellectual property or other
rights contained in the Advertising; and
- the Advertising is not defamatory or slanderous of any third party or
inaccurate or misleading or in contravention of any relevant legal or
regulatory requirement or code of practice (whether voluntary or obligatory)
relating thereto and does not infringe any rights of a third party
4.7 The Advertiser must comply with such technical requirements and other
procedures as the Company may require in respect of the same. In particular
(without limitation) any product claims contained in the Advertising must be
capable of verification and, if requested by the Company, the Advertiser shall
provide evidence of the same. For the avoidance of doubt, the Company shall have
no liability or responsibility for verifying any such product claims or ensuring
that the Advertising complies with this Condition 4.7.
4.8 The Company may (without incurring any liability whatsoever) amend or
decline to broadcast the Advertising if, in the Company’s opinion, the
Advertising does not comply with Condition 4.6 or 4.7 or is otherwise unsuitable
or inappropriate for broadcast (in the Company’s absolute discretion) or Ofcom
requires it to do so.
4.9 If the Company exercises its discretion pursuant to Condition 4.7, it will
notify the Advertiser as soon as practicable who shall consult with the Company
with respect to supplying alternative Advertising if appropriate. Should
alternative Advertising not be appropriate or not accepted by the Company (or
not be provided), the Advertiser shall remain liable to pay the Fee (and Costs)
for the entirety of the Campaign whether or not the advertising time booked is
used to broadcast the Advertising and the Advertiser shall have no claim against
the Company for any expense or damage whatsoever incurred as a result thereof.
If, pursuant to Condition 4.8, the Company has amended the Advertising, it shall
supply a copy of the same to the Advertiser.
4.10 Acceptance of Advertising by the Company does not confer any right for the
Advertiser to have a repeat order accepted on similar terms.
4.11 Advertisements broadcast within ten minutes of the segment booked may in
circumstances which in the Company's opinion are exceptional be treated as
having broadcast within the segment.
4.12 lf as a result of transmission failure an advertisement is broadcast on one
frequency only but where is it was intended to be broadcast on more than one
frequency the Company shall compensate the Advertiser in such manner as the
Company shall deem reasonable.
4.13 ln the event of the Company’s activities being restricted, curtailed or
prevented by any other act or thing beyond the Company's control the Company may
at any time not withstanding anything setout herein determine any contract
without prejudice to the Company's right to be paid by the Advertiser any monies
due and owing by the Advertiser to the Company at the time of such
determination.
4.14 Subject to the provisions of condition 11 below, all bookings are accepted
on the understanding that they will be paid for at the rates in force at the
date of broadcast.
4.15 Advertisement copy received less than 3 working days before the contracted
transmission date will be subject to a late copy fee of £10 per advertisement.
4.16 Any amendments requested by or on behalf of the Advertiser to advertisement
copy, advertisement content or any other aspect of the advertisement/s that
require additional production resources after the campaign start date will be
subject to an amendment fee of £200 + VAT per amendment.
5 Campaign
5.1 The Company reserves the right to modify the scheduled times and dates of
the Campaign. If for any reason (other than by reason of the Advertiser's
default or the exercise of the Company’s discretion pursuant to Condition 4
above) Advertising is not broadcast as scheduled or is broadcast containing a
material error, the Company will use all reasonable endeavours to offer to
broadcast the Advertising at some other time/or some other date(s) which may be
accepted instead by the Advertiser at no additional cost (but without prejudice
to the Advertiser's obligation to pay the Fee). Save for such offer (whether or
not the Advertiser accepts the same), the Advertiser shall have no claim against
the Company in respect of failure or delay or partial broadcast of the
Advertising or for any expense or damage whatsoever incurred as a result thereof
(and this shall not affect the Advertiser's obligation to pay the Fee).
5.2 The Company accepts no liability for any loss of profit, business,
contracts, revenues or anticipated savings or for special, direct, indirect or
consequential loss of any nature howsoever arising even if such damages are
foreseeable and whether or not the Company has been advised of the possibility
thereof. The maximum liability of the Company to the Advertiser for any and all
breaches of the Agreement or any other liability arising under the Agreement (or
tort including negligence or breach of statutory duty save in cases of death or
personal injury) shall be the amount of the Fee under the Agreement.
5.3 Where a booking includes reference to a particular level of impact, no
guarantee is given by the Company that the level of impact will be achieved.
However, in certain circumstances and at the discretion of the Company, if for
any reason (other than by reason of the exercise of the Company’s discretion
pursuant to Condition 4.7 the level of impact is not achieved, the Company may
offer to broadcast further Advertising so as to make up the deficiency. If any
such offer is not accepted the Advertiser shall have no claim against the
Company for any expense or damage whatsoever incurred as a result thereof.
5.4 Any information provided by the Company to the Advertiser in respect of
impacts achieved or Advertising broadcast is provided by way of information only
and the Company gives no representation or warranty as to the accuracy or
completeness thereof (and all warranties and representations are hereby
excluded). The Company has no obligation to provide further information or to
update any information already provided.
5.5 The Advertiser may request the Company to provide less than the agreed
amount of Advertising upon giving the Company not less than 7 days' prior notice
in writing but this shall not affect or otherwise discharge the Advertiser's
obligation to pay the entirety of the Fee for the Campaign.
5.6 Advertisements broadcast within ten minutes of the segment booked may in
circumstances which in the Company's opinion are exceptional be treated as
having broadcast within the segment.
5.7 lf as a result of transmission failure an advertisement is broadcast on one
frequency only but where is it was intended to be broadcast on more than one
frequency the Company shall compensate the Advertiser in such manner as the
Company shall deem reasonable.
5.8 ln the event of the Company’s activities being restricted, curtailed or
prevented by whatever means beyond the Company's control the Company may at any
time determine the Agreement without prejudice to the Company's right to be paid
by the Advertiser any monies due and owing by the Advertiser to the Company at
the time of such determination.
6. The Promotion and Prizes
6.1 The Advertiser acknowledges that the Promotion is subject to the Company’s
programming approval and that all editorial decisions concerning the Promotion
shall be at the sole discretion of the Company. The Company reserves the right
(without incurring any liability whatsoever to the Advertiser) to make such
changes or deletions to the Promotion as may be required by Ofcom or other
competent regulatory authority. The Company shall keep the Advertiser informed
of any significant changes.
6.2 If the designated presenter for the Promotion is unable or unwilling to
present the Promotion or it is not possible to include the Promotion in the
designated show, the Company reserves the right to substitute the designated
presenter with another presenter or to substitute the designated show with
another show (in the Company’s discretion).
The Advertiser acknowledges that all copyright and other rights in the Promotion
(other than in respect of Advertising) shall remain the sole property of the
Company and that the Advertiser shall not acquire any rights in the Promotion.
In particular (without limitation) the Company shall be entitled to retain all
sums received from advertisements broadcast during commercial breaks in the
Promotion.
6.3 The Advertiser will provide the Company with the Prizes (if any) no later
than 28 days from the date the Prize is won or upon the Company’s request
whichever is earlier. The Advertiser acknowledges that the Prizes are an
integral part of the Agreement. If the Company does not receive the Prizes
within the specified time, the Company is entitled to invoice the Advertiser for
the total amount of such Prizes at face value (as assessed by the Company), to
be paid by the Advertiser no later than 7 days following the date of invoice.
The Advertiser acknowledges that the Company will have no liability whatsoever
in respect of any Prizes to be given away as part of the Promotion and shall
indemnify the Company in respect of any claims, actions, loss and damages
arising in from or in connection with the same (including loss of the Company’s
reputation and goodwill)
6.4 The Advertiser may request the Company to provide less than the agreed
amount of Advertising upon giving the Company not less than 7 day’s prior notice
in writing but this shall not affect or otherwise discharge the Advertiser’s
obligation to the pay the entirety of the Fee for the Promotion.
6.5 Subject to the rights granted to Advertiser by the Company in any
Advertising and/or Promotion created by or on behalf of the Company in writing
under this Agreement, the Company shall retain the copyright and all other
rights in such material absolutely.
7.Termination and Cancellation
7.1 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 or
the scheduled start of the Pre-Promotion Period (in the case of a Promotion).
Termination by the Advertiser will result in a cancellation charge of 100% of
the Fee plus a reimbursement to the Company of all costs incurred to the date of
termination in respect of the Campaign, payable in full by the Advertiser on the
date of termination. For the avoidance of doubt, a termination notice received
by the Company later than 28 days before the scheduled start of the Campaign or
Pre-Promotion Period will result in the entirety of the Fee becoming due and
immediately payable.
7.2 The Company may terminate the Agreement by giving notice in writing to the
Advertiser no later than 3 days following acceptance of the booking under the
Agreement.
7.3 The Company may terminate the Agreement immediately by notice in writing if
the Advertiser
- Commits a material breach of its obligations under the Agreement which,
if capable of remedy, is not remedied within 7 days after receipt of written
notice requesting the same; or
- Goes into liquidation either voluntary or compulsory (except as part of
a bona fide scheme of reconstruction or amalgamation), is dissolved,
compounds with its creditors or has a receiver or administrative receiver
appointed over the whole or part of its assets
7.4 Termination does not affect a party's accrued rights and obligations as
at the date of termination.
8. Material and Property Liability
8.1 The Company will endeavour to use reasonable care in respect of any
advertising material under the Agreement but shall have no liability whatsoever
for the loss, damage or unauthorised use of the same (whether or not such
material is provided by the Company). Advertising material may be destroyed by
the Company after a period of three months following the end of the Campaign
without further reference to the Advertiser whether or not the material is
supplied by the Company, the advertiser or any third party.
9. Fees, Costs and Payments
9.1 If the Advertiser is an approved credit customer of the Company, the Fee will be invoiced by electronic email periodically as specified by the Company or, if no period is specified by the Company, the Fee will be invoiced by electronic email monthly in arrears at the end of each calendar month for the duration of the Campaign, calculated by reference to the Advertising scheduled for broadcast during that month. If the Advertiser is not an approved credit customer of the Company (or loses its approved credit rating during the term of the Agreement) the Fee for the entirety of the Campaign will be invoiced by electronic email on the date of the Agreement (or upon losing its credit rating) or as otherwise agreed in writing by the Company
9.2 Costs will be invoiced by electronic email to the Advertiser at the end of the Campaign unless otherwise agreed by the Company and the Advertiser in writing. The amount of Costs which have not been quantified in the Agreement (or any variation to the amount of Costs as quantified in the Agreement) will be submitted to the Advertiser for its approval prior to expenditure (such approval not to be unreasonably withheld or delayed) where reasonably practicable. If the Advertiser unreasonably withholds or delays in giving its approval, this may result in a delay or cancellation of the Campaign (in the Company’s discretion) but shall not affect the Advertiser’s obligation to pay the Fee or other Costs.
9.3 Payment of invoices will be made by electronic transfer in full within 7 days of the date of the invoice for advertising agencies and 14 days in respect of all other advertisers unless otherwise specified on the invoice by the Company. Payment is to be made in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever. In default of such payment, the Company is entitled (without prejudice to its other remedies) to immediately cease broadcasting the Advertising or halt the Promotion without any obligation to the Advertiser or claim against the Company. Time of payment is of the essence.
9.4 If any amount is not paid in full by the due date for payment, interest is
payable on the outstanding amount at a rate of 10% per annum above the base
lending rate from time to time of National Westminster Bank plc. Interest is
calculated on a daily basis and accrues from the due date for payment until
receipt by the Company of the full amount (including any accrued interest)
whether before or after judgment.
9.5 The existence of a query on any item in an invoice shall not affect the due
date of payment of the balance of the invoice. The Advertiser must notify the
Company of any query within 5 days of the date of invoice. Invoices may not be
queried after this time. Any amount queried and withheld by the Advertiser will
be subject to the full rate of surcharge in Condition xx above and will be
payable as part of the settlement of the following invoice, unless resolved in
favour of the Advertiser.
9.6 Any extension of credit allowed to the Advertiser may be changed or
withdrawn at any time. For the avoidance of doubt, if the Advertiser ceases to
be an approved credit customer of the Company, the Company reserves the right by
notice in writing to invoice the Advertiser immediately for the outstanding
amount of the Fee for the entirety of the Campaign.
9.7 The Company is entitled to set-off monies held by it for the Advertiser
against any monies due by it to the Advertiser (and any Advertiser's group
company) and is entitled to apply any monies held by it on behalf of the
Advertiser in settlement of any monies due to it by the Advertiser.
9.8 If any amount is not paid in full by the due date for payment, the Company
may (in its absolute discretion) elect not to accept any new bookings for
advertising time from the Advertiser (whether for the same client or in respect
of other clients).
The company will levy a charge on the Advertiser for any dishonoured payments
such as returned cheques, failed standing orders etc at a rate of £50 (+VAT) per
instance plus any other administrative costs the company may incur as a result
of the dishonoured payment.
9.9 If payment is not received by the due date it reserves the right to charge
an additional fee of £10 for any reminder that the Company may issue whether in
writing or not to the advertiser. In the event that payment remains outstanding
14 days after the date of any reminder the Company reserves the right to visit
the Advertiser’s premises and collect any outstanding monies. The Company will
charge an additional fee of £150 if such a visit is necessary to recover any
outstanding fees. In the event that the Advertiser fails to abide by the agreed
schedule of payments any and all discounts that have been applied to the
advertising agreement will be disallowed and the Advertiser shall become liable
for the Gross Amount due prior to the application of any discounts and this
amount shall become due for payment immediately.
10. Warranties and Indemnities
10.1The Advertiser warrants and undertakes to the Company that:-
- It is responsible for obtaining, maintaining and paying for all
necessary licences and consents for the transmission of any material
protected by any intellectual property or other rights contained in the
Advertising or the Promotion
- the Advertising or the Promotion will not infringe the copyright or
other rights of or be defamatory, libelous or slanderous of any third party
or be inaccurate, misleading, obscene or offensive or in any way contravene
any relevant legal or regulatory requirement or code of practice (whether
voluntary or obligatory) from time to time governing or relating to the
Advertising or its broadcast and will not infringe any rights of a third
party.
10.2 The Advertiser undertakes to the Company that the products or services
which are the subject of the Promotion and/or which are reasonably associated
with the Promotion are safe and fit for their intended purpose and comply with
all legal and regulatory requirements or codes of practice (whether voluntary or
obligatory) in respect of the same.
10.3 The Advertiser will indemnify and keep the company indemnified against all
actions, proceedings, costs, damages, 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 the use or broadcast of the Advertising or
the Promotion.
10.4 The Advertiser shall notify the Company forthwith on it becoming aware of
any fact or circumstance which would constitute a breach of Conditions 10.1 or
11. Publicity and Information
11.1 The Advertiser shall not publish any information in connection with any
advertisement which has been broadcast or is scheduled to be broadcast without
the written consent of the company which will not be unreasonably withheld.
12. Changes of Rates and Conditions
12.1 The Company reserves the right to change the advertisement rates, time
segments, classifications or any of these terms and conditions by giving not
less than 28 days notice and in the event of such a change the rates payable and
the terms and conditions applicable shall be those in force at the time of
broadcast but the Advertiser shall, by serving written notice on the Company
within l0 days of receiving notice of such change, be entitled to cancel the
contract to which the changes notified would otherwise be applicable.
12.2 The Company may from time to time make special charges and / or conditions
for certain types of advertisements or for bookings at certain specified
periods.
13. Value Added Tax
13.1 V.A.T. will be charged at the rates prevailing at the taxpoint
14. Force Majeure
14.1 The Company shall have no liability to the Advertiser if it is prevented,
hindered or delayed in carrying out any of its obligations under the Agreement
by any law or regulatory order, rule or regulation or by any other act or thing
beyond the Company control (including but not limited to strike, lock-out,
malicious damage, breakdown of plant, software or machinery, accident, fire or
flood or death of royalty).
14.2 The Company may (without any right of the Advertiser to bring a claim
against the Company) extend the time period for performance of the Agreement to
take account of such force majeure or terminate the Agreement with immediate
effect by written notice. If the force majeure continues for more than one
month, the Company may terminate the Agreement with immediate effect by written
notice. For the avoidance of doubt, any such termination shall be without
prejudice to the Company right to be paid any accrued amounts as at the date of
termination.
15. General
15.1 Any notice under the Agreement shall be in writing and sent by recorded
delivery post, by-hand delivery, first-class post or by fax at the last known
address or fax number from which one party has communicated with the other in
connection with the Agreement and, if sent by first class post, shall be deemed
to have been received 36 hours after posting. In the case of the service of a
notice by Advertiser upon the Company, any such notice shall be addressed for
the urgent attention of the Company Secretary.
15.2 The Advertiser may not assign or transfer any of its rights or obligations
hereunder without having obtained the Company’s prior written consent.
15.3 The Advertiser shall not without the prior written consent of the Company
publish any information in connection with any Advertising which has been
broadcast or is scheduled for broadcast.
15.4 The invalidity, illegality, or unenforceability of the whole or part of a
Condition does not affect or impair the continuation in force of the remainder
of these Conditions.
15.5 The Company shall be entitled to refer to the Advertiser's association with
the Company and the Advertising placed hereunder to promote the Company and its
advertising and sponsorship business generally.
November 2007
|
