1 In these terms,
1.1 an ‘Advertisement‘ means the advertisement, including any promotion, sponsorship, tagline or microsite:
(a) to be broadcast on a single occasion or in a series by the Company on its radio stations; or
(b) for publication on any of the websites owned or operated by the Company;
and specified on the Advertisement Confirmation Order or Company invoice.
1.2 the ‘Advertisement Confirmation Order‘ means the written confirmation provided by the Company to the Buyer confirming details of the Buyer’s order;
1.3 the ‘Company‘ means Midlands Radio Limited whose registered office is at , 49 Kingsway, Heanor, Derbyshire or any affiliate or subsidiary of Midlands Media Network Limited, as appropriate;
1.4 the ‘Buyer‘ means the person placing the order for an advertisement campaign with the Company, whether such person be the advertiser of the product or service promoted (the ‘Advertiser‘), or the Advertiser’s advertising agency or media buyer;
1.5 the ‘Campaign‘ means the promotional campaign detailed in the Advertisement Confirmation Order or Company invoice;
1.6 the ‘Campaign Start Date‘ means the start date of the Campaign detailed in the Advertisement Confirmation of Order or Company invoice;
1.7 ‘Intellectual Property’ means any and all patents, trade marks, service marks, designs, utility models, unregistered trade marks, business or trade names, copyright, design-rights, know-how and all other similar rights of a corresponding nature;
1.8 ‘Material’ means the material, content, notes and instructions provided by the Buyer for use in the Advertisements;
1.9 ‘Material Deadline‘ means:
1.10 the ‘Rate Card’ means the Company’s rate card in effect for the time being and may include, among other matters, its scale of advertisement rates, technical specifications, cancellation deadlines, and standard conditions; and
1.2 These terms and conditions, together with the Sponsorship/Advertisement Confirmation of Order and the Rate Card (the “Agreement”) governs the terms on which the Buyer and the Company have agreed that Advertisements be displayed and broadcast on the Company’s radio stations and/or websites.
2 This Agreement commences on the date the Buyer signs the Sponsorship/Advertisement Confirmation of Order or pays the Company’s invoice and shall continue until the final Advertisement in the Campaign has been broadcast or is taken down from the Company’s website (whichever is later) (the “Term”).
3 The Company shall arrange for Advertisements for the Campaign to be broadcast, published or otherwise communicated to the public as provided for in the Advertisement Confirmation Order. In addition, but only if detailed in the Advertisement Confirmation Order, the Company shall develop, prepare and create the Advertisements for the Campaign.
4 The parties shall cooperate in good faith to ensure the Campaign is developed and delivered in accordance with the specifications and deadlines set out in the Advertisement Confirmation Order.
5 To the extent that the Company is responsible for the development, design and creation of Advertisements:
6 The Buyer shall communicate its approval of the Advertisement material/copy as soon as possible thereafter and in no more than 7 days. If the Buyer fails to provide its comments or approval within 7 days, such non-communication shall be deemed as acceptance. Any delay in providing such approval may cause delay in the Campaign Start Date or such other agreed time for publication or broadcast of the Advertisement.
7 The Company represents and warrants that it is entitled to enter into this Agreement and to perform the obligations as set out in it.
8 The Buyer represents, warrants and undertakes that:
9 The Company may, in its sole discretion, (i) refuse to broadcast or publish an Advertisement or any Material, (ii) require the Advertisement or Material to be amended (or it may refuse or require amendment to a future broadcast of the Advertisement if the broadcast has already commenced), and/or (iii) require that an Advertisement is removed from one or more of the Company’s websites within 24 hours, so as:
10 The Company reserves the right (during the Term) to broadcast or publish (whether on one of its websites or via one of its radio stations) any Material previously supplied by the Buyer.
11 The rejection of any Advertisement or Material by the Company pursuant to the provisions of clauses 8 or 9 shall not incur the Company any liability howsoever arising whether to the Buyer or any third party.
12 The Company will use reasonable efforts to comply with the wishes of the Buyer and commits to providing the number of radio spots detailed in the Advertising Confirmation Order, it does not warrant that the time, date or the quality of the Advertisement will be exactly as requested by the Buyer or as set out in the Advertisement Confirmation Order or Company invoice.
13 The Company will not be liable for any loss of materials (including the Materials) in relation to the Advertisement, which the Buyer warrants that it has retained in sufficient quality and quantity for whatever purpose.
14 The Company shall have the right to change its scale of Advertisement rates at any time provided it provides the Buyer with reasonable written notice.
15 If the Company receives written notification of the Buyer’s wish to cancel the Campaign or the broadcasting of a particular Advertisement, by recorded delivery at least 21 working days prior to the Campaign Start Date (or the date the relevant Advertisement is due to be broadcast), the Buyer will only be liable to pay the cost of any commercial production which the Company has undertaken prior to cancellation. The relevant cost of such commercial production shall be determined at the Company’s sole discretion and shall be notified to the Buyer, in writing, following cancellation. Any cancellation which is less than 21 working days before the Campaign Start Date, regardless of when the Campaign was booked, shall not (even if followed by the Company) affect the Buyer’s liability for payment for the Advertisement.
16 The Company reserves the right to withdraw or to adjust at its sole discretion any discount given to the Buyer for a Campaign if it is not completed because of any stop order or cancellation by the Buyer or by the Company.
17 Payments made to the Company in respect of a Campaign will not be refunded for any reason once the Campaign has started.
CHARGES AND PAYMENT
18 The price payable to the Company for the Campaign shall be the price specified in the signed Advertisement Confirmation Order and/ or in accordance with the Rate Card. Payment for the Campaign shall be invoiced by the Company on the date of the Advertisement Confirmation Order and is due in cleared funds before the Campaign Start Date, unless the Company has agreed with the Buyer in writing to allow it credit, in which case payment shall be due within 30 days of the date of the Company’s invoice.
19 Payment must be made to the Company by:
20 All rates and charges payable under this Agreement are exclusive of Value Added Tax which shall be payable in addition at the rate from time to time in force.
21 Time of payment shall be of the essence of the Agreement.
22 All Intellectual Property (including any advertising material originated or developed by the Company under this Agreement) which is owned or licensed by the Company will at all times remain the Company’s property and nothing in this Agreement shall be deemed or construed as an assignment by the Company to the Buyer or the Advertiser of any Intellectual Property rights owned by the Company and all rights arising or generated by any such Intellectual Property will accrue to and inure to the benefit of the Company. The Buyer must obtain the Company’s written consent to use any of its Intellectual Property in the future and the Company reserves the right to charge the Buyer for such use.
23 The Advertiser and/or Buyer hereby grant to the Company a limited, non-exclusive, royalty-free licence to use and reproduce the Advertiser’s Intellectual Property for the purposes of uploading and displaying any Advertisements provided by the Advertiser onto the Company’s websites and/or (if the Company is developing the Advertisement) for the purposes of developing such Advertisement on the Company’s websites, or for any other purpose in connection with the fulfillment of the Company’s obligations under this Agreement.
24 All Intellectual Property belonging to the Advertiser shall at all times remain vested in the Advertiser and nothing in this Agreement shall be construed as an assignment by the Advertiser of any Intellectual Property rights owned by the Advertiser and all goodwill and rights arising in or generated by any such intellectual property will accrue to and inure to the benefit of the Advertiser.
LIMITATION OF LIABILITY
25 This section sets out the entire liability of a party to the other and, except as provided in this section, all other liability is excluded.
26 It is the responsibility of the Buyer to check the correctness of each Advertisement (and any repeats). The Company will not be responsible for any errors (or the repetition of an error in an Advertisement ordered for more than one radio broadcast or website publication) in Advertisements approved by the Buyer unless it is notified immediately and in writing when the error occurs and the Company fails to remove the Advertisement from its website or continues to repeat the Advertisement in its radio broadcasts. If the error was caused by the Company then the Company’s liability shall be limited at its discretion to either:
27 Any complaint, claim or query (whether in relation to the Advertisement or the invoice) must be raised with the Company in writing within 10 days following (as the case may be):
Such complaint, claim or query shall not affect the liability of the Buyer for payment by the due time of the Company’s charges for that and all other advertisements.
28 The Company shall not be liable to the Buyer for the failure, corruption, interruption, downtime, virus or malfunction of any radio station or website specified in the Advertisement Confirmation Order or for any delay in the broadcast of the Advertisement.
29 Notwithstanding any other conditions in this Agreement, if the Company requests the Buyer to amend any Material then the Buyer shall provide to the Company such amended Material within 7 days (or such other reduced timeframe to ensure that all Material is received 3 days before the Campaign Start Date).
30 The Company will not be liable to the Buyer if the success of the Advertisement is less than anticipated.
31 The Buyer will indemnify the Company and shall keep it fully and effectively indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising directly or reasonably foreseeably as a result of any breach or non-performance of any of the representations, warranties or other terms contained in these conditions or implied by law. If the Buyer is an agent for the Advertiser, the Buyer shall indemnify the Company against any claim made by the Advertiser against the Company.
32 Nothing in this Agreement limits or excludes the liability of a party for death or personal injury resulting from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
33 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
34 The Company shall not be liable for:
35 The Company may terminate this Agreement at any time and without reason by serving 28 Days written notice to the Buyer.
36 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, if a party:
(i). in the case of the Buyer, the Company shall be entitled:
(ii). in the case of the Company, the Buyer may terminate this Agreement without liability to the Company immediately by giving written notice to the Company.
37 In the event of expiration or termination of this Agreement, all rights and obligations of the parties and the licences granted herein shall cease to have effect and the Company shall no longer be permitted to use the Advertiser’s Intellectual Property.
38 In addition to the provisions above, the Company shall also be entitled to:
All additional charges are payable within 7 days following delivery of the Company’s invoice.
39 The Buyer acknowledges and consents to details of the Buyer’s name, address, payment record and if the Buyer is an individual to personal data (as defined under the Data Protection Act 2018) being processed by the Company and submitted to a credit reference agency (details of which shall be available upon request) for the purposes of obtaining a credit report. If Buyers are partners in a partnership or individuals trading as an unincorporated business, this clause applies to the partners in such partnership and the proprietors of such unincorporated business.
40 Any personal data transferred to or collected by the Buyer shall be the Company’s exclusive property and the Buyer warrants that:
41 The parties warrant that they shall use reasonable commercial endeavours to ensure that they comply with all relevant legislation governing the processing and transfer of personal data at all times.
42 The terms of this Agreement (but not its existence) and any other information notified by one party to the other shall be kept strictly confidential at all times unless required by law, court order of a competent jurisdiction, in which event the disclosing party shall notify the other party shall notify the other party as promptly as possible (and, if at all possible, prior to the making of any such disclosure) and shall use its reasonable commercial endeavours to ensure that such information continues to be treated as confidential. Notwithstanding the foregoing, the parties shall be entitled to disclose any such confidential information on a “need-to-know” basis under the same obligations of confidentiality as in this Agreement, to its professional advisors, employees, officers, contractors, agents and affiliated companies.
43 Only where the Advertisement relates to sponsorship:
44 The placing of an order for the broadcast of an Advertisement shall amount to an acceptance of these conditions and any conditions stipulated on an order form or elsewhere by the Buyer shall be void insofar as they are inconsistent with these conditions or the Rate Card or the Advertisement Confirmation Order.
45 No waiver or indulgence by the Company shall be effective save in relation to the matter in respect of which it was specifically given.
46 These conditions shall apply to each Agreement for the broadcast of an Advertisement together with such additional conditions (if any) as may be set out in the Company’s Rate Card and an Advertisement Confirmation Order or Company invoice.
47 The Buyer may not assign this Agreement in whole or in part.
48 These terms and conditions together with the Rate Card and an Advertisement Confirmation Order constitute the whole agreement between the Company and the Buyer and supersedes all previous agreements relating to its subject matter and the Buyer 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, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these terms and conditions, the Rate Card and an Advertisement Confirmation Order. If there is any conflict between these terms and conditions, the Rate Card and the Advertisement Confirmation Order, the Advertisement Confirmation Order shall prevail.
49 A person who is not a party to this Agreement shall have no rights to enforce any of its terms whether under the Contracts (Rights of Thirds Parties) Act 1999, or otherwise.
50 This Agreement which incorporates these conditions shall be construed under and governed by the law of England and the parties submit to the exclusive jurisdiction of the English courts.