1. Definitions & Interpretation
1.1 In these terms and conditions:
Advertisement means any kind of promotional or advertising material (including, but not limited to, advertorial content, classified and/or recruitment advertising) that is, as the case may be: (i) to be printed in a Print Publication and/or (ii) to be published or otherwise displayed by electronic means (including, but not limited to, banner, skyscraper, pop-up, roadblock, leader, belly bands, cover wraps, tip ons, inserts, button or other forms of online or electronic display advertising) via or as part of or in connection with any Online Publication;
Sales Order means the Sales Order form produced by LBM and signed by the Buyer;
“the Advertiser” means any person who promotes products or services to the general public or a section of the public, whether such person is the Buyer or not;
Advertiser Dependencies means the Copy Deadline, together with any other obligations of the Buyer which LBM may specify in connection with the proposed publication of the Advertisement (whether included in the Sales Order, the Media Pack, the Booking Form or otherwise) including, but not limited to, the delivery format and/or file configuration in which any copy for the Advertisement (whether for a Print Publication or an Online Publication) is to be supplied to LBM;
the Buyer means the person placing the order with LBM for the publication of the Advertisement (including, but not limited to, the Advertisers advertising agency or media buyer);
“Copy Deadline” means, where applicable, the latest date (as shown on the Sales Order, or otherwise) by which the Buyer is obliged to give LBM full instructions and copy for carrying out the Buyers order in accordance with and subject to these terms and conditions.
Online Publication means any website operated or controlled by LBM or other electronic medium (including, but not limited to, e-mail communications and alerts), whether connected with or related to the title of a Print Publication or otherwise;
“Print Publication” means any newspaper, magazine, promotional publication, insert, flyer (and including any supplement for which no charge is made to its recipient and which is published whether regularly or occasionally as part of or in association with such newspaper or magazine) published by LBM;
LBM means Local Beat Media Limited (company no. 7305609) with its registered office at Hector’s House, 676-680 Wimborne Road, Bournemouth, BH9 2EG;
the Media Pack means the media pack or supplementary rate cards from time to time in force which is used by LBM and as such may include (amongst other things) LBMs scale of advertisement rates and also technical specifications relating to the standard and quality of reproduction of any Advertisement including its setting, style, delivery format, file configuration and size and wording;
Working Days means 9am to 5pm Monday to Friday inclusive, other than bank and other public holidays.
1.2 Where the context so admits, words importing the one gender shall include all other genders and words importing the singular shall include the plural and vice versa. A reference to a statute, statutory provision or other legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment.
2. Application of these Terms and Conditions
2.1 All Advertisements accepted for publication by LBM are accepted subject to these terms and conditions which shall apply to the exclusion of all other terms and conditions (including any which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). Any variation to these terms and conditions and any representations about the Advertisement shall have no effect unless expressly agreed in writing by an authorised representative of LBM. The Sales Order shall form part of these terms and conditions.
2.2 Notwithstanding any other provision of these terms and conditions, nothing herein shall require LBM to do or omit to do anything which would contravene any applicable laws or regulations including, but not limited to, the Data Protection Act 1998, the Gambling Act 2005 and the Consumer Protection from Unfair Trading Regulations 2008.
3. The Buyers Obligations
The Buyer hereby warrants, represents and undertakes to LBM that:
a) in relation to any and all Advertisements the Buyer contracts with LBM as principal notwithstanding that the Buyer may be acting directly or indirectly for the Advertiser or in any other representative capacity;
b) should the Buyer change its name, trading style, identity, address, or should any other details disclosed by the Buyer to LBM change, the Buyer must give written notice to LBM within 5 Working Days of such change(s);
c) any and all other Advertiser Dependencies will be met and, unless otherwise agreed in writing by LBM, all copy for any Advertisements will be delivered to LBM in an approved digital format and/or file configuration and prior to the Copy Deadline;
d) the publication of the Advertisement by LBM (either in the Print Publication or the Online Publication or both, as the case may be) in the form originally submitted by the Buyer (or as amended pursuant to Condition 4 below) will not breach any contract with a third party or infringe any copyright, trade mark or other proprietary right of any third party or otherwise be unlawful or render LBM liable to any proceedings, claims, demands, costs or expenses or any other loss whatsoever;
e) in the case of any Advertisement submitted for publication by the Buyer which contains the name or pictorial representation, whether photographic or otherwise, of any living person or any part of the anatomy of any living person or any material by which any living person may be identified, the Buyer or the Advertiser has obtained the authority of that living person to make use of his or her name, identity, image, representation and/or copy;
f) in relation to any financial promotion (as defined under the Financial Services and Markets Act 2000), the Advertiser is, or its content have been approved by, an authorised person within the meaning of the Act or the Advertisement is otherwise permitted under the Act, under the Financial Promotion Order 2001 or under any other legislation subordinate to the Act;
g) the Advertisement complies with the requirements of all relevant legislation (including subordinate legislation, the rules of statutorily recognised regulatory authorities and the law of the European Economic Community) and applicable laws for the time being in force or applicable to the United Kingdom;
h) all advertising copy submitted to LBM is legal, decent, honest and truthful, and complies with the British Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority;
i) all instructions, artwork or other material submitted to LBM by electronic means shall not contain software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and shall not be corrupted;
j) any information supplied in connection with the Advertisement is accurate, complete and true;
k) where the Buyer is the Advertisers agent, the Buyer is authorised by the Advertiser to place the Advertisement with LBM and the Buyer will indemnify LBM against any claim made by the Advertiser against LBM arising from publication of the same; and
l) the Buyer has retained sufficient quantity and quality of any artwork, film or other materials and copy relating to the Advertisement as LBM shall not be liable for the loss of or damage to any of these items submitted to LBM.
4. Advertisements: Copy, Alterations, Accuracy, Publication, etc
4.1 Notwithstanding Condition 3 above LBM shall be entitled at any time to require the Buyer to amend any artwork, materials and copy for and relating to any Advertisement, or refuse (without notice) to publish any Advertisement for the purpose of:
a) complying with any legal or moral obligations placed on LBM or the Buyer or the Advertiser; or
b) avoiding the infringement of (i) the rights of any third party or (ii) the British Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority or (iii) any other applicable law; or
c) meeting to LBMs reasonable satisfaction (i) the production and quality specifications stipulated in the Media Pack or (ii) any other Advertiser Dependencies.
4.2 LBM reserves the right at its discretion and without notice to the Buyer:
a) to decline to publish, or omit, alter, suspend or change the position of any Advertisement otherwise accepted for insertion, or publication. However, LBM will endeavour to comply with the reasonable and practicable wishes of the Buyer although LBM does not warrant the date of publication or insertion, the wording, or the quality of the reproduction of the Advertisement; and
b) to destroy all artwork, film, copy or other materials submitted by the Buyer and which have been in LBMs possession for more than six (6) months from the date of their last use by LBM, unless specific written instructions have been received from the Buyer to the contrary.
4.3 All copyright and all other rights of a similar nature that are created or exist in material originated by LBM in connection with the publication of the Advertisement remains vested in LBM unless assignment or licence is issued in writing.
4.4 Advertisements: Online Publications
4.4.1 The Buyer shall submit copy for the Advertisement at least 48 hours prior to the intended go-live date. If the Buyer submits its copy late then LBM reserves the right to publish the Advertisement at a time of its choosing.
4.4.2 If the Buyer is supplying creative content in the form of an Advertisement that links to another website the Buyer must inform LBM in writing at least 2 Working Days prior to the intended go-live date.
4.4.3 If an Advertisement links to another website the Buyer is responsible for maintaining the link and for the content of the linked-to website. LBM may remove any Advertisement which contains content or links to a website which, in LBMs discretion, is (or is likely to be) defamatory or objectionable or otherwise likely to bring LBM into disrepute. The Buyer will indemnify LBM from and against any claims or liability suffered or incurred by LBM arising in any connection from links contained in an Advertisement.
4.4.4 If LBM receives complaints about the content of an Advertisement it may, at its discretion, remove the Advertisement from display without reference or liability to the Buyer or Advertiser.
4.4.6 The provisions set out in this condition 4.4 apply in addition (save where the context expressly permits) and without prejudice to all other provisions set out in these terms and conditions.
5. Advertisements: Responsibility and Liability
5.1 The Buyer shall indemnify and keep indemnified LBM against all proceedings, claims, demands, damages, costs, expenses or any other loss whatsoever arising directly or reasonably forseeably as a result of (i) the publication of the Advertisement or (ii) any breach of the Buyers obligations under these terms and conditions or implied by law.
5.2 With regard to the actual or intended insertion of an Advertisement in any Print or Online Publication LBM shall not be responsible to the Buyer or liable for:
a) checking the correctness of the Advertisement in the form it is received from the Buyer;
b) any error in the Advertisement in the form it is received from the Buyer;
c) the wording, representation, placement or quality of colour or mono reproduction of the Advertisement;
d) the actual positioning or prominence of the Advertisement in the Print and/or Online Publication (as the case may be);
e) the repetition of any error in an Advertisement ordered for more than one insertion;
f) the distribution of the Print or Online Publication in a specific geographical area;
g) the failure, corruption or malfunction of any system of electronic publication, whether by means of electronic storage, display or retrieval equipment or otherwise;
h) any order given by the Buyer in the nature of a stop order or cancellation or transfer of the publication of the Advertisement unless it is given to LBM in writing, in the case of an Advertisement to be published in a Print Publication, at least 15 Working Days before the Copy Deadline and, in the case of an Advertisement to be published in an Online Publication, at least 72 hours prior to the intended go-live date;
i) any loss whatsoever caused by delay or failure by LBM to issue the Print or Online Publication on the due date (or such other date of release, display or publication, as the case may be), or LBMs decision to suspend the Print and/or Online publication or cease the Print or Online Publication altogether;
j) the payment of any damages or other compensation for breach of contract because of LBMs failure to perform any of its obligations under these terms and conditions if such failure is caused by anything beyond LBM’s reasonable control (that is to say as a result of force majeure) including acts or threats of terrorism, strikes, lock-outs or other industrial actions or trade disputes, pandemic, epidemic or other widespread illness whether involving LBMs employees or those of any third party;
k) any loss whatsoever caused as a consequence of any instructions, artwork or any other material relating to the Advertisement being submitted by the Buyer in electronic form that is in breach of the warranty at Condition 3(h) above;
l) any matter of complaint, claim or query (whether in relation to the Advertisement, in which case Condition 5.3 shall apply, or LBMs invoice related thereto) unless raised with LBM in writing within 5 Working Days following the publication of the Advertisement or at the date on which it is claimed the Advertisement was intended to appear, or the receipt by the Buyer of the invoice giving rise to it; and
m) any failure of the Advertisement to meet or generate any target response levels or page impressions.
5.3 Subject to Condition 5.2, if an Advertisement contains an error caused by LBM and this detracts materially from the Advertisement then provided the Buyer gives written notice to LBM of the error in the Advertisement (as the case may be):
a) within 5 Working Days of its publication or display in the case of a single order; or
b) before either the Copy Deadline for its next insertion or subsequent go live date (as the case may be) in the case of a series order
LBM will at its discretion either:
a) give the Buyer credit for the cost of the Advertisement containing the error; or
b) publish the Advertisement for a second time without charge to the Buyer
and to that extent such credit or re-publication (as the case may be) shall be LBMs maximum liability to the Buyer. Such matter dealt with under this Condition 5.3 shall not affect the liability of the Buyer for payment by the due date of LBMs charges for the Advertisement and all other Advertisements.
5.4 Except to the extent specified in Condition 5.3, LBM shall not be liable for any loss or damage suffered by the Buyer (or the Advertiser) as a result of any total or partial failure of publication, distribution or availability of any Print or Online Publication in which any Advertisement is scheduled to be included, or for any error, misprint or omission in the printing of any Advertisement.
5.5 The total liability of LBM to the Buyer for any act or omission of LBM, its employees or agents relating to any Advertisement shall not exceed the amount of the full refund of any price paid to LBM for the Advertisement or the cost of a reasonably comparable further or corrective Advertisement. Without limiting the foregoing, LBM shall not be liable for any (i) loss of profits, goodwill or business or (ii) indirect or consequential loss.
6. Payment Terms
6.1 Payment for any Advertisement or any other goods or services is due in advance as specified in the Sales Order, usually within 7 days of invoice or prior to publication (whichever is earliest).
6.2 All the rates and charges payable under or with reference to these terms and conditions are subject to and exclusive of Value Added Tax which shall be charged in addition at the rate from time to time in force.
6.3 If the Buyer:
a) fails to pay LBMs invoice in accordance with Condition 6.1 above; or
b) is in breach of any obligation under these terms and conditions,
LBM shall be entitled to terminate its contract with the Buyer immediately (without prejudice to any other right or remedy available to LBM whether under these terms and conditions or otherwise) and, without prejudice to LBMs right to terminate its contract with the Buyer in such circumstances, the outstanding balance owed by the Buyer shall become due and payable immediately.
6.4 Without prejudice to Condition 6.3, LBM shall be entitled to:
a) charge interest on any outstanding balance owed to LBM at the rate of 6% above the base rate of HSBC Bank Plc from the date that the invoice became due for payment until the date it is paid in full (whether before or after Judgment);
b) charge an administration fee of £25 if any cheque drawn in its favour by the Buyer in purported satisfaction of any unpaid invoice is dishonoured on presentation; and
c) instruct a debt collection agency (apart from solicitors) to recover any sum due and in that case all charges incurred by LBM as a result of such instruction shall be payable by the Buyer in any event upon demand.
6.5 LBM reserves the right at its discretion and without notice to the Buyer:
(a) to charge the Buyer for any extra production and colour processing costs because of any act or omission by the Buyer to supply artwork, film, copy or other materials of sufficient quality or otherwise in accordance with the Advertiser Dependencies; and
(b) to change any matters shown in the Media Pack, including in particular (but not limited to), its scale of advertisement rates at any time.
7. Cancellation & Termination
7.1 LBM shall not be bound by any request from the Buyer to stop, cancel or suspend an Advertisement unless such request is in writing and confirmed in writing by LBM, and in accordance with Condition 5.2(h).
7.2 Products that renew automatically (as specified in the Sales Order) will do so on the renewal date, unless cancellation notice is given in writing and confirmed in writing by LBM at least 10 working days before the renewal date. If no such cancellation notice is confirmed then LBM will issue an invoice and the Buyer is bound to this repeat order in accordance with the Sales Order and these Conditions.
7.3 Without prejudice to Condition 7.1, no refund is due to the Buyer. For advertising space booked in advance LBM at its discretion may offer transfer to a different display period, subject to finding a replacement buyer for the cancelled items.
7.4 LBM shall be entitled (without prejudice to any other remedy available to it) to treat this contract as repudiated if the Buyer or the Advertiser;
(a) being an individual dies or makes voluntary arrangement with his creditors or his estate becomes subject to an administration order or he becomes bankrupt;
(b) being a company becomes insolvent, has a receiver appointed to manage its assets or it enters into liquidation or commences to be wound up (other than for the purpose of amalgamation or reconstruction);
(c) allows an encumbrancer to take possession of any of its property or assets; or
(d) is unable to pay its debts as they fall due or ceases or threatens to cease to carry on business.
8.1 Governing Law. These terms and conditions (and LBMs contract with the Buyer) shall be governed by and construed according to English Law and the parties submit to the exclusive jurisdiction of the English courts.
8.2 Severance. If any provision of these terms and conditions is or becomes invalid, illegal or void, that shall not affect the validity and legality of the other provisions.
8.3 Waiver. No failure or delay by LBM to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Third Parties. None of the provisions of these terms and conditions are intended to confer a benefit on or be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.