Advertising terms and conditions
Website and print publications
Thursday 30 April 2009
In these Conditions, the following words and expressions shall have the meaning set out below:
Code of Conduct and Complaints
Competition terms and conditions
External contributors: Terms & conditions for freelancers, bloggers and contributors of user-generated content
Work experience terms and conditions
Corrections and Clarifications
“Advertiser” is the corporate or private entity whose product or services are featured in the Advertising Material;
“Advertising Material” means Information provided by the Client, whether arranged in an agreed format, or supplied with authorisation for IDNM to so arrange, for placement in any of IDNM’s publications (whether print or online) in accordance with the terms of this Agreement;
“Client” means the Advertiser and/or its advertising agency;
“IDNM” means Independent Digital News and Media;
“Agreement” means these Conditions and any associated Booking Form/Terms;
“Campaign Period” means the campaign period booked by the Client for the appearance of the Client’s Advertising Material in any of IDNM’s publications (whether print or online);
“Client Site” means the web site location(s) to which the Client’s Advertising Material may be linked via hyper-text link(s);
“Information” means all the information, Trade Marks, logos, copy and other Materials necessary to enable IDNM to create the Advertising Material or, if the Advertising Material is supplied by the Client, the Advertising Material itself;
“Trade Marks” means all trade marks incorporated in the Information and/or the Advertising Material;
“User” means any person who accesses the IDNM Site or any of IDNM’s publications (including print and online); and
“Website” means www.independent.co.uk or such other website as may be specified between the parties.
2. Rights and Obligations of IDNM
2.1 IDNM will publish the Advertising Material in its publications as arranged insofar as is possible. While every endeavour will be made to meet the wishes of advertisers, IDNM does not guarantee the publication of any particular Advertising Material, or its publication on any particular date. Such publication is subject to IDNM retaining full editorial control over all Advertising Material appearing in its publications.
2.2 IDNM shall have the right to change its scale of advertisement rates at any time.
3. Rights and Obligations of the Client
3.1 The Client agrees to supply to IDNM on or before the agreed copy delivery date either: (i) a file containing the Advertising Material in the format agreed between the Client and IDNM; or
(ii) (if it is specifically agreed with IDNM that IDNM will create the Advertising Material) the Information in an agreed format and medium.
3.2 The Client will permit IDNM to link into the Client Site via the Advertising Material during the Campaign Period.
The placing of an order for the insertion of Advertising Material shall amount to an acceptance of:
4.1 the terms of this Agreement; and
4.2 any other associated conditions stipulated on IDNM’s ratecards, otherwise in writing by IDNM or available to view on the relevant part of the Website; and that:
4.3 any other conditions stipulated verbally or in any format by the Client shall be void insofar as they are in conflict with this Agreement and any of its associated terms.
5. Acceptance of Advertising Material
The Advertising Material will be published on the IDNM Site(s) or print publications in consideration of payment of IDNM’s fees and charges, subject to IDNM retaining the right at any time to omit, amend, suspend or change the position of any Advertising Material accepted, including, but not limited to where in the sole discretion of IDNM, the Advertising Material is considered to be in breach of any undertakings or warranties under this Agreement, or where any third party claims that any of its rights or any relevant regulations have been breached. In cases where, in the exercise of its rights, IDNM may have decided to modify the Advertising Material or to delete or replace any part of the Advertising Material, or information contained therein, IDNM will consult with the Client in good faith.
The Client shall pay all fees and charges in advance unless a previously approved account has been agreed with IDNM.
It is the responsibility of the Advertiser/advertising agency to check the first appearance of any series of advertisements and notify IDNM immediately of any errors. IDNM assumes no responsibility for the correction of errors unless notified by the Advertiser. In the event of any error, misprint or omission in the print publication or the Website of an advertisement or part of an advertisement which is caused by IDNM, IDNM will either re-publish the advertisement or relevant part of the advertisement as the case may be or make a reasonable refund of or adjustment to the cost. No re-publication, refund or adjustment will be made where the error, misprint or omission does not materially detract from the advertisement.
IDNM will not be liable for any loss of copy, artwork, photographs or other materials, which the Client warrants that it has retained in sufficient quality and quantity for whatever purpose.
9. Use of Trade Marks
The Client warrants and undertakes that IDNM and the Client Site owner(s) will be entitled to use the Client’s name and Trade Marks in connection with the Advertising Material.
10.1 IDNM warrants to the Client that it has the full power and authority to enter into and perform this Agreement.
10.2 The Client warrants and undertakes to IDNM:
(i) it has the full power and authority to enter into and perform this Agreement;
(ii) where it is acting as advertising agency for an Advertiser, the Client warrants that it is authorised by the Advertiser to place the advertisement with IDNM, that it is entering into this Agreement with IDNM as a principal and that it will indemnify IDNM against any claim made by the Advertiser against IDNM arising from the publication thereof;
(iii) nothing contained in the Advertising Material or the Information shall infringe any right of copyright, right of trade mark, right of privacy, right of publicity or personality or any other right of any other nature of any person, or be obscene, libellous, blasphemous, defamatory or unlawful in any way, or shall incorporate any third party source Material;
(iv) where any Advertising Material submitted for publication contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the Client has obtained the authority of such living person to make use of such name, representation and/or copy;
(v) in relation to any investment advertisement, the Client is, or its contents have been approved by, an authorised person within the meaning of the relevant financial legislation, or the advertisement is otherwise permitted under that Act;
(iv) there are and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the Information resulting from any act or omission of the Client, which can or will impair or interfere with the rights of IDNM, and that nothing contained in the Information, nor any use of it, will violate any right of any third party; and
(v) it owns all necessary rights in, or has all necessary licences in respect of the Trade Marks.
10.3 The placing of an order for the insertion of an Advertising Material in any of IDNM’s publications or the Website shall constitute an undertaking by the Client to IDNM that the Advertising Material itself and any site linked into via the Advertising Material:
(i) complies with all relevant consumer protection legislation and advertising codes; and
(ii) that the Information (including any claims made therein) is complete and true; and
(iii) does not contain Material that is obscene, blasphemous, defamatory, infringing of any rights of any third party or is otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction from which the Advertising Material will be accessible or which might bring IDNM or any Site Owner into disrepute; and
(iv) complies with the British Code of Advertising, Sales Promotion and Direct Marketing and all other relevant advertising guidelines or codes made available from time to time and with the requirements of current legislation (and for the avoidance of doubt it is the Client’s responsibility to make themselves aware of all such guidelines).
10.4 Where any third party claims that the design of the Advertising Material infringes the intellectual property rights of that third party, IDNM may modify the Advertising Material or delete or replace any part of the Material, or information contained in the Advertising Material in accordance with Clause 5.
11.1 The Client agrees to indemnify IDNM and keep it indemnified at all times against all claims, proceedings, demands, damages, liabilities and costs arising in connection with or further to the subject of this agreement, including but not limited to damages, payments and legal costs arising out of any use of an Advertising Material by a User (or any complaint or claim in respect thereof), including without limitation in respect of any transaction between the Client/Advertiser and a User.
11.2 IDNM will not be liable for any loss or damage, direct or consequential, arising out of the publication of or omission to publish any Advertising Material or for late publication of an Advertising Material or failure to perform any other obligation howsoever occasioned, save in cases occasioned by the direct negligence of IDNM, in which case compensation may be negotiated up to a maximum of the Charges paid by the Client.
12. Intellectual Property Rights
12.1 The Client warrants and undertakes that it is and shall remain the owner, or is expressly acting for the owner of all intellectual property rights in the Client Site and the Client logos and Trade Marks that may feature within the Advertising Material.
12.2 If any third party claims that the design of the Advertising Material infringes the intellectual property rights of that third party, IDNM may modify the Advertising Material or delete or replace any part of the Material, or information contained in the Advertising Material in accordance with Clause 5.
13. Confidentiality and Data
13.1 Each party agrees to keep confidential (both during and after the Campaign Period) the terms of this Agreement and all other information concerning the business or affairs of the other. This obligation will not apply in the case of any disclosure required by law, trivial information or information which is already publicly available or in the possession of a party at the time of disclosure by the other (other than as a result of a breach of any confidentiality obligation).
13.2 Each party will comply with all applicable data protection legislation.
Orders cannot be cancelled once IDNM has commenced to carry out the order in accordance with the first publication date requested by the Client. In other cases, not less that twenty- eight clear working days' notice of cancellation of any order or unexpired part of an order is required for a cancellation, which must be specifically agreed in writing between the parties. Email notification of cancellation is not acceptable as notice unless acknowledged by IDNM.
15.1 Both parties shall have the right to terminate this Agreement upon the giving of written notice in the event of any of the following events:
(i) if the other commits any material breach of its obligations and/or warranties under this Agreement which, in the case of a breach capable of remedy, is not remedied within 10 days of service of a notice specifying the breach and requiring it to be remedied (IDNM reserves the right to suspend publication of the Advertising Material pending its eventual reinstatement upon the breach in question being remedied);
(ii) if the other holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangements as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrance take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of the Insolvency Act 1986; or
(iii) pursuant to Clause 18.
15.2 Forthwith on termination of this Agreement:
(i) IDNM will remove the Advertising Material from the IDNM Site; and
(ii)The Client will account to IDNM for all fees and charges payable up to and including
the last day of the Campaign Period or date of termination, as applicable.
15.3 Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.
Both parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to this Agreement or a breach thereof, if any such dispute cannot be settled amicably through ordinary negotiations by appropriate representatives of the parties the dispute shall be referred to the signatories of this Agreement or their successors who shall attempt to resolve the dispute. If any such attempt at resolution fails to result in a settlement, the matter at the election of either party may be submitted for resolution to a court of competent jurisdiction, which shall be the courts of England and English law shall be applicable.
Any notice given under this Agreement will be in writing and may be delivered to the other party or sent by pre-paid post or facsimile transmission to, in the case of postal service, the main business of that party or, in the case of post or fax service, to such other address or number as may be notified under this Agreement by that party from time to time for this purpose.
18. Force Majeure
A party will not be liable for any failure/delay in performing its obligations under this Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 20 working days, the other party may terminate this Agreement immediately by written notice.
This Agreement is personal to and for the sole benefit of the Client and the Client shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interests or obligations under this Agreement to any person or organisation. IDNM shall be entitled to assign or license the whole or any part of its rights under this Agreement to any IDNM associated company and in such event all of the representations, warranties and undertakings on the part of the Client contained in this Agreement shall inure for the benefit of the relevant IDNM associated company and, if the said associated company undertakes direct with the Client to comply with the obligations of IDNM to the Client (but not otherwise), then from the date of such undertaking, IDNM shall have no further liability to the Client.
20.1 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties. IDNM acts as a principal at law in all bookings of advertising space.
20.2 No failure or delay by any party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
20.3 The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.
20.4 Any variation to this Agreement must be in writing and agreed by the parties.
Email is not acceptable subject to Clause 14 above.
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