The Advertiser wishes to acquire Airtime and the Company agrees to provide such rights on the terms and conditions set out below.
1. Definitions Interpretations:
In these terms and conditions the following will hereafter be referred to as:
|“Act”||means the Broadcasting Act 1990 and 1996 as amended or superseded from time to time;|
|“Advertiser”||means a person, firm or company making a booking otherwise than through or by means of an Advertising Agent or Agency and includes its permitted successors in title and assigns;|
|“Advertising Copy”||means any advertising material, spot commercials and sponsorship break bumper/idents intended for transmission by the Company. Delivery of Advertising Copy shall be deemed to have been made only when the Company’s technical requirements have been met and the relevant transmission instructions have been given;|
|“Airtime”||means advertising and/or sponsorship time within a commercial break available to an Advertiser for the transmission of its Advertising Copy;|
|“Advertisement”||means any and all advertising and/or sponsorship material, as applicable provided by or on behalf of the Advertiser to the Company for transmission in accordance with this Contract;|
|“Clearcast”||means the body previously known as the Broadcasting Advertising Clearance Centre or any superseding body;|
|“Company”||means ESTV Limited, registered office 2 Derry Street London W8 5HF;|
|“Contract”||means the agreement between Advertiser and the Company comprising these terms and conditions and the relevant booking terms approved in writing by Company;|
|“Force Majeure”||means any event beyond the reasonable control of either the Company or the Advertiser, as applicable, and shall include (but not by way of limitation) strikes, lockouts, riots, sabotage, acts of war, terrorism, hostilities or piracy, destruction of essential equipment by fire, explosion, storm, flood, earthquake, and delay caused by failure of power supplies or transport;|
|“OFCOM”||means the Office of Communications (including any of its co-regulators) or successor body, or any other regulatory body with applicable legal or regulatory jurisdiction;|
|“Standard Time lengths”||Ten (10) seconds or a multiple of ten (10) seconds;|
|“Working Day”||means Monday to Friday inclusive in each week except any Bank or Public Holiday. Advertising Copy delivered after 4pm on a Working Day shall be deemed to have been received on the next Working Day.|
In the event the Advertiser wishes the Company to undertake airtime activity on behalf of any company within the Advertiser Group, the Company confirms that the terms of this Contract shall be applicable to the provision of the supply of such airtime activity by the Company to the Advertiser subject to agreement on the relevant price. “Advertiser Group” means any company that is:
- the Advertiser’s holding company; or
- the Advertisers’ subsidiary company; or
- any other company that is a subsidiary of its holding company, and “holding company” and “subsidiary” shall have the meanings given to them in the Companies Act 2006;
This Contract sets out the entire agreement and understanding between the Advertiser and the Company in connection with the Airtime and shall supersede and replace all documentation previously issued by the Company purporting to set its terms and conditions. This Contract may not be modified or amended except by a written agreement signed by both parties.
If any provision of this Contract shall be illegal or unenforceable the same shall be disregarded and the remaining provisions shall take effect as if the illegal or unenforceable Condition had not been included;
Headings are for ease of reference and should not affect the construction or interpretation of this Contract;
By placing an order with the Company, the Advertiser accepts in full these Terms and Conditions.
The Company reserves the right (acting reasonably) to decline any Advertisement.
The parties acknowledge that it will be reasonable for the Company to decline an advertisement in the following circumstances:
- where the Advertisement is obscene, defamatory or infringes the rights of any third parties or its content is inappropriate having regard to all of the circumstances; and/or
- where the Advertisement is unlawful or breaches any applicable regulatory or industry code of practice.
No terms or conditions other than those set forth herein or any variations under Clause 12 below shall be binding upon the Company or the Advertiser as applicable unless in writing and signed by the Company or the Advertiser.
4. Broadcast of Copy:
Advertising Copy will be provided by the Advertiser and will be in accordance with the standards and guidelines of Clearcast as well as the Company and the Company shall provide copies of such standards and guidelines to the Advertiser. All Advertising Copy must be cleared by Clearcast in advance of transmission.
The Advertiser hereby authorizes the Company to transmit all Advertising Copy delivered pursuant to this Contract, and specifically hereby grants a royalty-free non-exclusive license to the Company to broadcast any relevant Advertising Copy on London Live and its associated digital platforms.
Advertisements will only be transmitted if they are approved by the Company, satisfy its technical requirements and comply with the Act and Code of Advertising Standards and Practice issued by OFCOM.
The Advertiser shall ensure that Advertising Copy complies with the Clearcast Notes of Guidance for Television Advertising and the Copy Clearance Secretariat (operated by the ITV Association) Notes Of Guidance and Copy Clearance Bulletins in force at the time of transmission and that in addition:
- Scripts and/or storyboards, along with consignment notes for all spot advertisements must be submitted in advance to the Copy Clearance Secretariat for provisional approval before transmission;
- All finished Advertising Copy must be submitted to the Copy Clearance Secretariat for approval before transmission; and
- Approval by the Copy Clearance Secretariat of any Advertising Copy shall not in any way prejudice the Company’s right to reject any advertisement as provided under Clause 6.
Subject to agreement with the Advertiser, the Company reserves the right in its absolute discretion to do any act or thing in respect of the transmission of any Advertisement or part thereof (including the fading, editing, or cutting thereof), which is found to be unsuitable and the Company shall not thereby incur any liability to the Advertiser who shall have no claim whatsoever for damages or otherwise in respect of any non-transmission of any such Advertisement or part thereof, but the Advertiser shall remain liable to the Company for the charges payable hereunder for such Advertisement.
All bookings are accepted on the understanding that they will be paid in accordance with the accounting dates as specified in Clause 18 below in force on the date of transmission.
The Company will use its best endeavours to adhere to advertisement rotation instructions but shall not be liable for any failure to comply with those instructions. The Company also reserves the right not to transmit the advertisement if rotation instructions are not received two (2) clear Working Days before the first transmission date of the advertisement.
All Advertising Copy must be supplied via electronic digital files to Company’s transmission play-out centre via ADSTREAM or IMD, rotation instructions to be delivered to the Company. The Company requires that each file contain only one (1) advertisement. The Company reserves the right, at its discretion, to reject any file that contains multiple advertisements on it.
All programmes are subject to suspension or cancellation or placement at the sole discretion of the Company.
The Company shall not be held responsible for any addition to, changes in or deletions from any Advertising Copy required by OFCOM or delays resulting therefrom.
Subject to Clause 5, the Company reserves the right to refuse Advertising Copy that does not comply to Standard Time lengths requirements.
5. Non Standard Time lengths:
Advertisements which are not Standard Time lengths will only be accepted if they can be transmitted within the same break as the other advertisements for the same Advertiser or product and the total length bought is a Standard Time length. Rates for standard and non-standard time lengths are available from the Company on request.
If in the Company’s opinion Advertising Copy advertising more than one (1) product is the consequence of editing two (2) or more advertisements with the purpose of taking advantage of reduced rates for Airtime of a greater time length, the Company reserves the right, at its absolute discretion, to charge such Airtime at a rate equivalent to that which the Company would have charged had the Advertising Copy for each product been submitted to it separately.
Advertising Copy (including the material specified in Clause 4 above) must be delivered to the Company not less than two (2) clear Working Days before the date of the intended transmission accompanied with rotation instructions. In exceptional cases the Company will endeavour to accept Advertising Copy delivered less than two (2) working days before the date of transmission. In such cases the Company is not obliged to notify the Advertiser if it decides the Advertising Copy is unsuitable.
Where Advertising Copy is not delivered at least two (2) clear Working Days before the intended transmission date the Advertiser shall at the discretion of the Company be liable to pay in full for the Airtime booked whether or not any advertisement is in fact transmitted.
Advertising Copy or changes to transmission rotation instructions accepted at the absolute discretion of the Company less than two (2) clear Working Days before the intended transmission date shall be subject to a surcharge of £300 plus VAT per copy.
If the Company decides that an advertisement is unsuitable, the Company shall notify the Advertiser as soon as reasonably practicable as the case may be who must supply alternative at its own cost as soon as possible and in any case not later than two (2) clear working days prior to the intended transmission. Alternative Advertising Copy and rotation instructions if accepted at shorter notice shall at the discretion of the Company be subject to a surcharge of £300 plus VAT per copy. Should alternative copy not be supplied or not be accepted the Company shall be entitled to be paid by the Advertiser as the case may be in full for the Airtime booked.
The provisions of the above paragraphs shall be without prejudice to any special arrangements for bookings made at shorter notice and agreed in writing by the Company.
7. Date/Times of Transmission:
The Company does not guarantee that the times and/or dates of advertisement transmission will be adhered to. If an advertisement is not transmitted on the day and in a break arranged, the Company will endeavour to offer a transmission at some other date which may be accepted instead by the Advertiser. If the alternative date is not accepted by the Advertiser, the Advertiser shall be entitled to a refund of sums paid which are associated with such transmissions.
The Company shall use all reasonable endeavours to transmit all advertisements in accordance with advertisement rotation instructions. If a total failure to transmit shall be due to the fault of the Company the advertisement has not been transmitted, the advertisement shall not be charged for and a refund of appropriate sums shall be made to the Advertiser. The Company will be prepared (but not obliged) to discuss the operation of this Clause in circumstances where an advertisement is substantially but not wholly transmitted correctly.
Advertisements appearing within thirty (30) minutes of the segment booked will normally be regarded as appearing within the segment. Advertisements booked for transmission at a specific time will be transmitted in the commercial break nearest to that time.
In the event of the Company’s transmission activities being restricted, curtailed or prevented by any law or any other act or thing beyond the Company’s control, the Company may at any time, notwithstanding anything herein before contained, forthwith terminate any Contract in whole or in part subject to refunding the Advertiser any and all sums paid in advance by the Advertiser for transmission activities which have not taken place as at the date of termination.
8. Cancellation or Postponement:
Subject to the provisions of Clause 12 below, any booking may be cancelled by either party provided that notice in writing is received and acknowledged by the Company or the Advertiser as the case may be not less than six (6) weeks before the first intended transmission date (“first spot”). Cancellation or postponement requests for campaigns within six (6) weeks before the first intended transmission date shall be considered by the Company and may be accepted at the Company’s absolute discretion subject to the following cancellation charges that apply to the entire campaign:
|Over 6 weeks from first intended transmission||20% of the value of booking at the time of cancellation|
|29 to 42 days from first intended transmission||35% of the value of booking at the time of cancellation|
|15 to 28 days from first intended transmission||50% of the value of booking at the time of cancellation|
|Within 2 weeks of first intended transmission||100% of the value of booking at the time of cancellation|
Unless a booking is cancelled in accordance with these Clauses, if the Advertiser fails to deliver any Advertising Copy in accordance with Clause 6 above will remain liable to pay in full whether or not the advertisement is transmitted. The Company reserves the right to retain all expenditure for any postponed campaign and to rebook the Airtime during a mutually agreed period.
Any postponement of a campaign by the Advertiser, for which the Advertiser has pre-paid, must be recommitted at the time of postponement to a time not more than six (6) calendar months after the first spot of the campaign being postponed. Any postponed campaign not recommitted within six (6) calendar months of the first spot shall be subject to the Company’s cancellation charges of 100% that apply to the entire campaign.
Either party shall be entitled to terminate this Contract immediately if:
- the other party is in material breach of any of its obligations and has not remedied the same within five (5) days of service of notice by the other party specifying the breach; or
- the other party goes into liquidation, has a receiver or administrator appointed or makes any arrangements with its creditors or is unable to pay its debts or there is reasonable apprehension that any such event may occur.
9. Materials and Property Liability:
While every reasonable care will be taken in respect of advertising films, recordings, goods or equipment, the Company cannot accept liability for the delay in delivery, loss or damage thereof whether in the studios or in transit and whether or not such films, recordings, goods or equipment are supplied by the Company and whether any delay, loss or damage is occasioned by the Company’s fault or negligence. Unless otherwise instructed Advertising Copy may be destroyed by the Company if not transmitted for a period of ninety (90) days without further reference to the Advertiser.
10. Warranties and Indemnity:
Advertiser warrants and undertakes that:
- It will be responsible for obtaining and paying for all necessary licenses and consents for the transmission throughout the territory of any Advertising Copy or copyright material contained, or the appearances of any person in the Advertising Copy including also (but not limited to) music rights and performing rights. In addition, it will also be responsible for informing the Company in advance of transmission if a piece of commercially recorded music has been simultaneously commissioned for use as signature music for programmes or promotions. It is acknowledged that any broadcaster will carry its own PRS and PPL licence to allow the public broadcasting of music;
- To the best of the Advertiser’s knowledge and belief, no Advertising Copy will breach the copyright, moral rights or other rights of any person or be defamatory of any third party;
- Subject to Clause 10d below, it will indemnify and keep the Company indemnified against all actions, proceedings, direct costs, damages, expenses, penalties, claims, demands and liabilities arising from any breach of the above warranties or in any manner whatsoever in consequence of the use, recording or broadcasting in the form submitted or prescribed of any Advertising Copy or matter supplied by or transmitted for the Advertiser; and
- The Advertiser’s entire and aggregate liability arising hereunder or otherwise shall be limited to the sums paid by the Advertiser to the Company.
No Advertiser shall without the prior consent of the Company publish any information that includes reference to the Company within marketing or promotional materials in connection with any Advertising Copy which has been transmitted or is scheduled for transmission.
12. Change of Time Segment and Classifications:
While every endeavour will be made to give seven (7) days’ notice in respect of any change of time segments and classifications, the Company reserves the right to make such changes at shorter notice. Unless otherwise agreed between the parties in writing in the event of such a change, the rate payable shall be at the rate in force at the time of the transmission (subject to the Advertiser having approved any such change in rate) after taking into account any such change.
Each party shall keep confidential all confidential information disclosed to it by the other whether relating to this Contract or otherwise relating to the content or operation of the agreement set out in this Contract. Each party will only disclose confidential information to those of its employees, officers, approved sub-contractors who (i) need to know it for the purpose of exercising or performing his/her/its rights and obligations under this Contract (ii) are informed of the confidential nature of the information divulged and (iii) agree to act in compliance with the confidentiality provisions of this Contract. Neither party will disclose any confidential information to any third party (other than its employees, officers, and approved sub-contractors in accordance with this Clause), except for information that:
- is already in the public domain at the time of disclosure;
- becomes publicly known through no fault of its own; or
- is acquired by that party from a third party without any breach of any obligation of confidence.
Notwithstanding any other provision of this Contract it shall not be a breach of this Contract for either party to disclose any information given to it in connection with this agreement pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with statutory power to require the disclosure of such information, provided that the affected party gives all reasonable notice of such disclosure to the other party.
14. Force Majeure:
If either party is prevented or delayed in whole or in part from complying with its obligations under this Contract by reason of Force Majeure (the “Affected Party”), it will notify the other party giving details thereof. The Affected Party will be relieved of its obligations under this Contract to the extent that its performance is hindered or delayed by such Force Majeure event. If the event of Force Majeure continues for a period of more than six (6) months, the other party shall be entitled to terminate the affected booking by notice in writing to the Affected Party. This termination will be subject to the Company’s charges as set out in Clause 8 above.
The Company shall be free to assign, sub-contract and otherwise deal freely with its obligations under this Contract, subject to any third party to whom the Company’s obligations are assigned or sub-contracted to are capable of/have the necessary expertise to fulfil such obligations. The Advertiser shall be free to assign/novate its obligations/rights under this Contract to any Company in the Advertiser Group.
16. Advertising Agency and Commissions:
- An Advertising Agency shall be deemed to contract as principal in all respects (notwithstanding that its customer is identified) and as such will be personally responsible for the payment of accounts, unless other arrangements are agreed by the parties hereto in writing. Late Copy Surcharges will be invoiced to the Advertising Agency as the principal. It will be the responsibility of the Advertising Agency as principal, and not that of the Company to collect all monies owed by any third party involved.
- Unless otherwise agreed in writing, Agency commission of up to fifteen per cent (15%) will be paid by way of deduction by the Company to all Advertising Agencies who satisfy the Company’s credit rating requirements and comply with the Act and any amendments thereto. The commission will be calculated on the basis of the rates applicable (i.e. excluding surcharge for late payment or late copy), less discount allowed.
17. Change of Conditions:
While every endeavor will be made to give two (2) weeks’ notice in respect of changes of terms and conditions, the Company reserves the right to make such changes at shorter notice. Unless otherwise agreed between the parties in writing, in the event of such a change, the terms and conditions applicable shall be those in force at the time of transmission. The Advertiser or Agency shall (by serving written notice on the Company within one (1) week of receiving notice of such a change) be entitled to cancel any order for an advertisement to which the change of terms and conditions would otherwise be applicable.
18. Special Rates:
Special rates and Conditions may be announced from time to time for particular programmes.
The Company shall have the right to audit the Advertiser’s or Agency’s records at its own cost at any time on reasonable prior written notice to ensure that payments are being made in accordance with any agreement for advertising Airtime based upon the share of the Advertiser television advertising expenditure that it has agreed to commit in purchasing advertising Airtime sold by the Company. If any such audit reveals that the Advertiser has underpaid the Company by more than three per cent (3%) of sums properly due, then the Advertiser shall pay to the Company forthwith the cost of the audit, together with the amount of the shortfall and interest thereon accruing daily at a monthly rate of two per cent (2%) from the date when the sums were due until the date of actual payment. In the event of any shortfall being revealed which is less than three per cent (3%) of sums properly due to the Company, the Advertiser shall forthwith make payment to the Company of the shortfall together with interest as aforesaid.
20. Accounts and Invoicing:
Accounts payable by an Agency registered by the Agency Registration and Credit Listing Committee of ITVA and listed in its Credit List (a ‘credit listed Agency’) shall be paid not later than the twenty fifth (25th) day on the month following the month of transmission (provided that the Agency shall satisfy the Company of such status).
Payment shall be deemed to have been made in due time if the appropriate remittance is posted by first class post by the twenty fifth (25th) day of the appropriate month. In months where the twenty fifth (25th) falls on a Sunday or a Bank Holiday, the next working day shall be regarded as the due date by which the payment must be received by the Company.
In the event of the Advertiser not paying an account by the due date without prejudice to any other rights or remedies of the Company, the Company reserves the right without prejudice to all its other rights:
- Not to accept further bookings from the Advertiser and to withhold transmission of advertisements;
- To treat any amount due to the Company as a simple debt recoverable forthwith:
- To charge interest on all monies outstanding beyond the due date for payment at a rate of two per cent (2%) per annum above the base rate of the Bank of England base rate from time to time.
The existence of a query in any individual item in an account will only affect the due date of payment of that individual item. The Advertiser must notify the Company of any query within seven (7) Working Days from receipt of the invoice. No spots may be brought into dispute by the Advertiser after this time. In the event of a query being resolved in favour of the Company, the item in query will be subject to the full rate of interest on late payments, subject only to the Company having dealt with the query with reasonable despatch.
Where appropriate all amounts payable will be rounded up to the nearest pound.
The Advertiser will pay the Company within thirty (30) days of receipt of invoice.
The Company may issue monthly invoices in advance in respect of the airtime activity scheduled to take place in the immediately following month with the exception for clients who are required to pre-paying for activity.
This Contract shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts. A person who is not a party to these Terms and Conditions may not enforce any of their provisions under the Contract (Rights of Third Parties) Act 1999. Nothing in this Contract shall be deemed to constitute a partnership, agency or joint venture between the parties and neither party shall do or permit any act to be done whereby it may be represented as being the agent or partner of the other. Any terms of this Contract which by their nature are meant to survive the termination of this Contract (including without limitation the confidentiality provisions set out at Clause 13 above) shall survive the termination of this Contract. No waiver of any default or breach of this Contract by either party shall be deemed a waiver of any breach or default of this Contract.