In these Conditions, the following words and expressions shall have the meaning set out below:
“Advertiser” is the entity or person whose products and/or services are featured in the Advertising Material;
“Advertising Material” means promotional material (including any text, images, audio and video content) to be placed on one or more Platforms in accordance with the terms of this Agreement;
“Agreement” means these Terms and Conditions and the associated Booking Terms;
“Booking Terms” means (i) an insertion order; and (ii) any other written documents (including emails) which set out the details of a booking to place Advertising Material on Platforms and which have been accepted in writing by ESI Media;
“Campaign Period” means the campaign period booked by the Client during which the Advertising Material will be placed on one or more Platforms;
“Client” means the Advertiser and/or its advertising agency as set out in the Booking Terms;
“Client Trade Marks” means the name of the Advertiser and any other trade marks incorporated in the Advertising Material other than ESI Trade Marks;
“Client Website” means the web site(s) referred to in the Advertising Material and/or to which the Advertising Material is linked via hyper-text link(s);
“ESI Media” means the company which publishes the relevant ESI Platform where the Advertising Material will appear. Where more than one company is involved, each one will have the benefit of these terms. For information, the relevant companies are currently: IDNML for the Independent Platforms and ESL for the Evening Standard Platforms;
“ESI Platforms” means the Independent Platforms and the Evening Standard Platforms;
“ESI Trade Marks” means all trade marks owned by ESI Media;
“ESL” means Evening Standard Limited (company number 6770098);
“Evening Standard Platforms” means the London Evening Standard printed newspaper, ES Magazine and any printed supplements, the websites standard.co.uk and homesandproperty.co.uk and the corresponding mobile/tablet apps (including the London Evening Standard App and ES Weekend App);
“IDNML” means Independent Digital News and Media Limited (company number 7320345);
“Independent Platforms” means the Independent and indy100 digital editions, the websites independent.co.uk and indy100.com and all corresponding mobile/tablet apps (including the Independent Live App, the Independent Daily Edition App and the Independent Football Live App);
“Information” means video, audio, text, images, Client Trade Marks and other materials which will appear within (or will be used to create) the Advertising Material;
“Platform” means the relevant ESI Platforms and (where applicable) selected Third Party Platforms;
“Third Party Platform” means a digital platform owned and operated by a third party; and
“User” means any person who accesses or otherwise engages with a Platform.
2. Rights and Obligations of ESI Media
2.1 ESI Media will arrange for the Advertising Material to appear in the Platforms, as arranged with the Client insofar as is possible. While every endeavour will be made to meet the wishes of the Client, ESI Media does not guarantee that any particular Advertising Material will be disseminated.
2.2 ESI Media retains full editorial control over the ESI Platforms.
2.3 All rights (including copyright) in all artwork, copy and other material produced by ESI Media shall vest in ESI Media
3. Rights and Obligations of the Client
3.1 The Client agrees to supply to ESI Media on or before the agreed delivery date either:
(i) a file containing the Advertising Material in the format agreed between the Client and ESI Media; or
(ii) (if it is specifically agreed with ESI Media that ESI Media will create the Advertising Material) all Information requested by ESI Media in an agreed format and medium.
3.2 The Client agrees that it will not rotate advertisements for multiple Advertisers within one digital ad tag.
3.3 In relation to digital campaigns, the Client will not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions or (ii) conceal conversions.
4.1 The placing of an order for the insertion of Advertising Material shall amount to an acceptance by the Client of the terms of this Agreement.
4.2 Any conditions stipulated verbally or in any other format by the Client shall be void insofar as they are (i) not approved by ESI Media in writing; and/or (ii) in conflict with this Agreement.
5. Advertising Material
6.1 The Client shall pay all fees and charges in advance unless an account has been previously approved by ESI Media.
6.2 Where an account has been approved by ESI Media, the due time for payment shall be no later than 2.00 p.m: (i) if the Client is a recognised agency under the Recognition Scheme of the News Media Association, on the last working day of the month following that in which the Advertising Material appeared; or (ii) in any other case, on the last working day prior to the 16th day following the end of the month in which the Advertising Material appeared.
6.3 In respect of each advertisement for which payment is not made by the due date, the Client agrees to pay ESI Media interest on the amount overdue at the rate of 1.5% per month (or the maximum amount permitted by law if less) accruing from the due date.
6.4 The Client agrees that ESI Media’s statistics (including its impression count) will be used for all digital campaigns and will be final and binding on Client.
7.1 It is the responsibility of the Client to check upon the first appearance of the Advertising Material and notify ESI Media immediately of any errors. ESI Media assumes no responsibility for the correction of errors unless notified by the Client within 7 days. In the event of any error or omission in the appearance of Advertising Material which is caused by ESI Media, ESI Media will either re-publish the Advertising Material (or relevant part thereof) or make a reasonable refund of or adjustment to the charges. No re-publication, refund or adjustment will be made where the error, misprint or omission does not materially detract from the advertisement.
8.1 ESI Media warrants to the Client that it has the full power and authority to enter into and perform this Agreement.
8.2 The Client warrants and undertakes to ESI Media that:
(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, it is authorised by the Advertiser to place the advertisement with ESI Media, that it is entering into this Agreement with ESI Media as a principal and that it will indemnify ESI Media against any claim made by the Advertiser against ESI Media arising from the publication thereof;
(iii) the reproduction of the Advertising Material and Information on the Platforms shall not infringe any copyright, trade mark, right of privacy, right of publicity or personality or any other right of any nature of any third party;
(iv) where any Advertising Material 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 Advertising Material has been approved by a person authorised under the relevant legislation;
(vi) there are and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the Information which can or will impair or interfere with the rights or obligations of ESI Media;
(vii) the Advertising Material, the Client Website and any claims made therein:
(a) comply with all relevant laws, regulations and advertising codes (e.g. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing) and any other standards communicated to Client by ESI Media from time to time;
(b) do not contain any material that is misleading, deceptive, 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 jurisdiction from which the Advertising Material will be accessible;
(c) do not contain and will not distribute any viruses, spyware, malware or other malicious or destructive code; and
(d) do not contain any material which might bring ESI Media, its products or partners into disrepute.
8.3 In relation to Advertising Material which includes: (i) a competition, prize draw, discounted offer or other form of sales promotion; and (ii) both Client Trade Marks and ESI Trade Marks (a “Promotion”), the Client warrants and undertakes to ESI Media that:
(i) it is entitled to supply the goods and services featured in the Promotion and ESI Media will incur no cost or liability in respect of such supply (and the Client will put in place suitable insurance arrangements);
(ii) such goods and services will comply with any specification or description agreed between ESI Media and the Client;
(iii) such goods and services will be supplied with reasonable care and skill and in accordance with best industry standards,
(iv) such goods and services will comply with all applicable laws, regulations and guidelines both in their supply and manufacture,
(v) such goods will be delivered and such services will be performed in a timely fashion, in the quantities, at the time(s) and location(s) set out in the Advertising Material or as otherwise agreed by ESI Media and the Client;
(vi) in the event of any defect in such goods or in the performance of such services, the Client will supply substitute goods or services in a timely fashion, in the quantities, at the time(s) and location(s) specified by ESI Media; and
(vii) it will use its best endeavours to ensure the success of the Promotion and shall cooperate fully with ESI Media in respect of any reasonable request made by ESI Media in relation to the Promotion.
9.1 The Client agrees to defend, indemnify and hold harmless ESI Media and its officers, directors, agents, affiliates and employees, at all times against all claims, proceedings, demands, damages, liabilities and costs (including reasonable legal fees) arising in connection with: (i) a breach of this Agreement by the Client; (ii) the content of any Advertising Material or Client Website; (iii) a contaminated file, virus, worm, or Trojan horse originating from the Client or Advertiser; and (iv) any transaction entered into by the Client and a User.
9.2 ESI Media will not be liable for any loss or damage, direct or consequential, arising out of any failure to publish any Advertising Material or for the delayed publication of any Advertising Material or ESI Media’s failure to perform any other obligation howsoever occasioned, save where caused by the direct negligence of ESI Media, in which case compensation shall be limited to the charges payable by the Client.
9.3 ESI Media gives no warranties or guarantees in respect of Third Party Platforms and ESI Media will not be liable for any loss or damage, direct or consequential, arising out of or in connection with Third Party Platforms.
9.4 Save for any liability that cannot be limited by law, ESI Media’s liability to the Client will be limited to the amount of the fees due under the Booking Terms and ESI Media shall have no liability to the Client for any indirect losses.
9.5 Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded by law.
10. Intellectual Property Rights
10.1 The Client warrants and undertakes that it is and shall remain the owner (or expressly authorised by the owner), of all intellectual property rights in the Client Website and the Client Trade Marks.
10.2 The Client hereby grants ESI Media a non-exclusive licence to use the Information and to publish the Advertising Material on the Platforms as agreed in the Booking Terms.
10.3 Where any third party claims that any Advertising Material infringes the intellectual property rights of a third party: (i) the Client shall notify ESI Media immediately; and (ii) ESI Media may modify the Advertising Material or delete or replace any part of the Advertising Material, or information contained in the Advertising Material in accordance with Clause 5.
11. Confidentiality and Data
11.1 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 party. This obligation will not apply in the case of any disclosure required by law, 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).
11.2 Each party will comply with all applicable data protection legislation. The Client will not collect any personally identifiable information from Users.
11.3 All data and reports supplied by ESI Media shall be used solely for the Client’s internal business purposes only. Client may not use data collected from Users to retarget such User on other sites. Client will not disclose to any third party any data collected from Users or otherwise in connection the Platforms that is specific to or that identifies any User, ESI Media or any Platform.
11.4 Client agrees that it will not make any disclosure or public statement concerning the subject matter of this Agreement without ESI Media’s prior written approval.
Orders cannot be cancelled once ESI Media has started to carry out the order in accordance with the first publication date requested by the Client. Where ESI Media has not started to carry out the order, unless otherwise agreed in the Booking Terms, not less than twenty-eight (28) days’ notice of cancellation is required. Email notification of cancellation is not acceptable unless acknowledged by ESI Media.
13.1 Either party may terminate this Agreement immediately by giving written notice to the other party:
(i) if the other party 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 (ESI Media reserves the right to suspend dissemination of the Advertising Material pending its eventual reinstatement upon the breach in question being remedied); or
(ii) if the other party 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 16.
13.2 Upon termination of this Agreement:
(i) ESI Media will remove the Advertising Material from the Platforms; and
(ii)The Client will account to ESI Media within 7 days for all fees and charges payable up to and including the last day of the Campaign Period or date of termination, as applicable.
13.3 Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.
14.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
15.1 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 courier to, the main business of that party (or such other address as may be notified under this Agreement by that party from time to time for this purpose). Email is not acceptable, unless specifically mentioned in these Terms and Conditions.
16. Force Majeure
16.1 A party will not be liable for any failure or 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. 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.
17.1 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. ESI Media shall be entitled to assign or license the whole or any part of its rights under this Agreement to any associated company within ESI Media’s group 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 ESI Media associated company.
18.1 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
18.2 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.
18.3 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set out in the Agreement.
18.4 Each party agrees that it shall:
(i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”); and
(ii) maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
18.5 Nothing in this agreement shall exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party or for any other liability which cannot be limited by law.
18.6 Any variation to the Booking Terms must be in writing and agreed by the parties. ESI Media may modify these Terms and Conditions at any time and without liability by posting an updated version on its website: www.esimedia.co.uk/adterms