In these terms,
'Advertisement' means the advertisement, including any promotion, sponsorship, tagline or microsite:
to be broadcast on a single occasion, or in a series, by Broadcaster on its radio stations; or
for publication on any of the websites owned or operated by Broadcaster;
as specified on the Advertisement Confirmation Order.
'Advertisement Confirmation Order' means the written confirmation provided by Broadcaster to the Buyer confirming details of the Buyer's order;
'Advertiser' means the company or person (as the case may be) that is the distributor / owner of the product or service which is being promoted in the Advertisement;
'Agreement' means these terms and conditions, the Rate Card and the Advertisement Confirmation Order;
'Broadcaster' means BAUER RADIO LIMITED (Company No. 01394141) whose registered office is at 1 Lincoln Court, Lincoln Road, Peterborough, PE1 2RF, acting on behalf of itself and/or, as applicable on behalf of ABSOLUTE RADIO LIMITED (Company No. 02674136) or on behalf of ORION MEDIA LIMITED (Company No. 06898191);
'Buyer' means the person placing the order for an advertisement campaign with Broadcaster, whether such person is the Advertiser or the Advertiser's agency or media buyer;
'Campaign' means the promotional campaign detailed in the Advertisement Confirmation Order consisting of a series of Advertisements;
'Campaign Start Date' means the start date of the Campaign detailed in the Advertisement Confirmation of Order or (if not detailed on the Advertisement Confirmation Order) the first date that an Advertisement is broadcast on Broadcaster’s radio station(s) or is uploaded on one of its websites;
'Intellectual Property' means any and all patents, trade marks, service marks, designs, utility models, unregistered or registered trade marks, business or trade names, copyright, design-rights, know-how and all other similar rights of a corresponding nature;
'Material' means the content, notes and instructions provided by the Buyer for use in the Advertisements;
'Rate Card' means Broadcaster’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;
'Term' shall have the meaning set out at clause 2.
This Agreement governs the terms on which Broadcaster shall deliver and create the Campaign for the Buyer.
This Agreement commences on the date the Buyer signs or confirms (which may be via email) the Advertisement Confirmation of Order and shall continue until the final Advertisement in the Campaign has been broadcast or is taken down from Broadcaster’s website (whichever is later) (the “Term”).
Broadcaster shall broadcast, publish and communicate the Advertisements to the public in accordance with the Advertisement Confirmation Order. In addition, if detailed in the Advertisement Confirmation Order, Broadcaster shall develop and create the Advertisements for the Campaign.
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.
To the extent that Broadcaster is responsible for the development and creation of Advertisements:
Broadcaster and the Buyer shall liaise in good faith to determine the concept and relevant details of each Advertisement prior to the Campaign Start Date;
the Buyer shall provide Broadcaster with all Material necessary for Broadcaster to develop the Advertisement (in the format and style agreed with Broadcaster in advance) , at least 14 working days before the Campaign Start Date (unless otherwise agreed in writing), the Buyer acknowledges that a delay in providing Material to Broadcaster will cause delay in the development and/or distribution of the Advertisements and Broadcaster shall not be liable for any delay caused by the Buyer in these circumstances;
Broadcaster shall consult with the Buyer at material stages of the development process and submit the draft Advertisement to the Buyer for final approval (such approval not to be unreasonably withheld or delayed) prior to its scheduled broadcast or publication date;
The Buyer must communicate its approval (or, if it does not approve, its comments) of the draft Advertisement as soon as possible, and in no more than 7 days, after it has received the draft Advertisement from Broadcaster, failure to do so (non-communication) shall be deemed acceptance of the draft Advertisement;
If the Buyer does not approve of the draft advertisement it must provide Broadcaster with written details of any changes it requires and (provided such changes are not materially different from the detail set out in the Advertisement Confirmation Order) Broadcaster shall use its reasonable commercial endeavours (subject to restrictions imposed by law of regulation) to comply with the Buyer’s requested changes in time for the Campaign Start Date;
If the Buyer delays providing its approval of or comments on the draft Advertisement may cause delay in the Campaign Start Date or such other agreed time for publication or broadcast of the Advertisement (and Broadcaster shall not be held responsible for such delay).
Broadcaster represents and warrants that:
it is entitled to enter into this Agreement and to perform the obligations set out in it;
in the fulfillment of its obligations under this Agreement, it shall comply with all applicable laws, rules and regulations governing the broadcast or communication to the public of advertising in the United Kingdom;
it shall comply with all applicable laws, rules and regulations relating to data protection, anti-bribery, anti-corruption and anti-money laundering; and
it shall perform its obligations under this Agreement in accordance with reasonably accepted industry practice.
The Buyer represents, warrants and undertakes that:
it is entitled to enter into this Agreement and to grant the rights to Broadcaster as specified in this Agreement;
in relation to each Advertisement, the Buyer contracts with Broadcaster as a principal notwithstanding that the Buyer may be acting for the Advertiser as an agent or media buyer;
it will give Broadcaster written notice of any change of its name, trading style, identity or trading premises immediately (and in no more than 5 working days of such change);
all Material (including all consignment notes, rotation details and RACC approvals) will (unless otherwise agreed, in writing) be delivered to Broadcaster in the format or medium notified to the Buyer by Broadcaster: (i) if the Buyer is providing its own material for an Advertisement, at least 3 working days before the Campaign Start Date; or (ii) if Broadcaster is writing and producing the material for an Advertisement (using the Buyer’s Material), at least 14 working days before the Campaign Start Date;
it has obtained or will obtain clearance (and shall be responsible for all costs, royalties and expenses related to all third party rights) necessary for the exploitation of all Material it has provided Broadcaster for the purposes of the Campaign;
all information supplied to Broadcaster or otherwise used in connection with or used within an Advertisement or Material is accurate, complete and true;
in respect of any Material submitted for broadcast or publication (whether on the Internet or on the radio) which contains the name or voice or a contribution made by a living person, the Buyer or the Advertiser has obtained the authority of such living person to make use of such name or voice or contributions;
in relation to any financial promotion (as defined under the Financial Services and Markets Act 2000), the Advertiser is, or its contents have been approved by, an authorised person within the meaning of that 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;
if the Buyer is entering this Agreement as agent on behalf of the Advertiser, the Buyer warrants that it is authorised by the Advertiser to enter into this Agreement and to place the Advertisement with Broadcaster;
the Advertisement and / or Material is legal, decent, honest, accurate, complete and truthful and complies with the British Code of Advertising, Sales Promotion and Direct Marketing, the BCAP Code, the RACC Radio Copy Guidelines, all relevant codes under the general supervision of the Advertising Standards Authority and complies with all relevant laws, regulations and codes of practice in the United Kingdom;
the exercise by Broadcaster of the Material for the Campaign will not violate or infringe any 3rd party Intellectual Property rights or any right of privacy, moral rights or constitute a libel or slander; and
in connection with this Agreement, it shall comply with all applicable laws, rules, regulations, decrees and/or official government orders relating to data protection, anti-bribery, anti-corruption and anti-money laundering.
Broadcaster may, in its sole but reasonable discretion: (i) refuse to broadcast or publish an Advertisement or use any Material or, if a broadcast has already commenced it may refuse a future broadcast, or: (ii) require an Advertisement or any Material be amended or if the broadcast has already commenced it may require amendment to a future broadcast, and/or (iii) require that an Advertisement is removed from one or more of Broadcaster’s websites within 24 hours to:
comply with any legal or moral obligations placed on Broadcaster, the Buyer or the Advertiser;
avoid infringing a third party's rights, the BCAP Code, the RACC Radio Copy Guidelines, any other codes published by the Advertising Standards Authority or any other relevant laws or regulation;
to avoid / remedy the potential risk of bringing Broadcaster into disrepute or harming its reputation; or
to avoid the breach of the Broadcaster’s relevant brand guidelines.
Broadcaster reserves the right (during the Term and for the purposes of the Campaign) to broadcast or publish (whether on one of its websites or on one of its radio stations) any Material previously supplied by the Buyer.
Broadcaster’s rejection of any Advertisement or Material pursuant to the provisions of clause 8 shall not incur any liability whether to the Buyer or any third party.
Broadcaster 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.
Broadcaster 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.
Broadcaster reserves the right to change its scale of Advertisement rates at any time provided it provides the buyer with reasonable written notice.
If Broadcaster receives written notification that the Buyer’s wishes to cancel the Campaign or a 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 Broadcaster has undertaken prior to cancellation. The relevant cost of such commercial production 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 Broadcaster) affect the Buyer's liability for payment for the Advertisement in accordance with clause 16.
Broadcaster reserves its right to withdraw, or adjust at its 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.
CHARGES AND PAYMENT
The price payable to Broadcaster for the Campaign shall be the price specified in the Advertisement Confirmation Order and/ or in accordance with the Rate Card. Payment for the Campaign shall be invoiced by Broadcaster when the Campaign is agreed (as indicated by signing the Advertisement Confirmation Order or email confirmation that the Campaign is agreed) and is due in clear funds before the Campaign Start Date, unless Broadcaster 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 Broadcaster’s invoice.
Payment must be made to Broadcaster by:
cheque delivered (with receipt acknowledged) to its principal place of business (or to another premises as Broadcaster may specify in writing); or
BACS or other electronic transfer to Broadcaster’s bank account, as detailed on its invoice.
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.
For the purposes of this Agreement, time of payment shall be of the essence.
All Intellectual Property (including any advertising material originated or developed by Broadcaster under this Agreement) which owned or licensed by Broadcaster will at all times remain Broadcaster’s property and nothing in this Agreement shall be deemed or construed as an assignment by Broadcaster to the Buyer or the Advertiser of any Intellectual Property rights owned by Broadcaster and all rights arising or generated by any such Intellectual Property will accrue to and inure to the benefit of Broadcaster. The Buyer must obtain Broadcaster’s written consent to use any of its Intellectual Property in the future and reserves the right to charge the Buyer for such use.
The Advertiser and/ or Buyer hereby grants Broadcaster a non-exclusive, royalty-free licence during the Term to:
use and reproduce the Advertiser’s Intellectual Property (contained in any completed Advertisement provided for the purposes if the campaign or in any Material) for the purposes of uploading and displaying any Advertisements or Material provided by the Advertiser onto Broadcaster’s websites or broadcasting it on its radio stations;
if Broadcaster is creating the Advertisement, for the purposes of creating such Advertisement and uploading it on Broadcaster’s websites or broadcasting it on its radio stations;
or for any other purpose in connection with the fulfillment of Broadcaster’s obligations under this Agreement.
At the end of the Term, Broadcaster shall no longer be entitled to use the Advertiser’s Intellectual Property, save that the Advertiser hereby grants Broadcaster a perpetual licence to use the Material used for the Campaign for Broadcaster’s internal business uses and to promote its advertising services to other potential advertisers.
At the end of the Term, the Advertiser shall be entitled to use the Advertisement for its own purposes subject to (if Broadcaster has created the Advertisement) any restriction imposed by third parties.
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
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.
It is the responsibility of the Buyer to check the correctness of each draft Advertisement (and any repeats) when it is provided to it by Broadcaster for approval. Broadcaster 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 and, following such notification, Broadcaster fails to remove the Advertisement from its website or continues to repeat the Advertisement in its radio broadcasts. If the error was caused by Broadcaster then the Broadcaster’s liability shall be limited to either:
crediting the Buyer a proportion of the total charge for the Advertisement calculated on a pro-rata basis for the number of broadcasts containing the error or for the number of days in which the Advertisement was live on Broadcaster’s website(s); or
broadcasting a corrected Advertisement or correcting the Advertisement on the Broadcaster’s website without charge.
Any complaint, claim or query (whether in relation to the Advertisement or the invoice) must be raised with Broadcaster in writing within 10 days following (as the case may be):
the broadcast of the Advertisement;
the date on which it is claimed the Advertisement should have been transmitted;
the date on which the Advertisement should or has been live on Broadcaster’s website(s); or
the date of receipt by the Buyer of the invoice giving rise to the complaint, claim or query.
Such complaint, claim or query shall not affect the liability of the Buyer for payment to Broadcaster for charges due for that and all other Advertisements.
Broadcaster 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.
Notwithstanding any other terms in this Agreement, if Broadcaster requests the Buyer to amend any Material then the Buyer shall provide 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.
Broadcaster will not be liable to the Buyer if the success of the Advertisement is less than anticipated.
The Buyer will indemnify Broadcaster and shall keep Broadcaster 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 of this Agreement. If the Buyer is an agent for the Advertiser, the Buyer shall indemnify Broadcaster against any claim made by the Advertiser against the Broadcaster, that it is not authorized to enter this Agreement on the Advertiser’s behalf.
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.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
A party shall not be liable to the other for loss of profits, business, goodwill and/or similar losses or loss of anticipated savings, loss off goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
Broadcaster’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Advertisement concerned.
Broadcaster may terminate this Agreement at any time and without reason by serving 30 days written notice to the Buyer.
Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, if a party:
commits a material breach of this Agreement which is not capable of remedy or, if capable of being remedied, is not remedied within 15 days of the non-breaching party giving written notice to the other giving details of the breach, requiring its remedy;
suspends, threatens to suspend, admits inability or is deemed unable to make payment of its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a solvent amalgamation of the company with one or more other companies or the solvent reconstruction of that party; or
files a petition, gives a notice, passes a resolution, or makes an order, for or in connection with its winding up other than for the sole purpose of a solvent amalgamation with one or more other companies or for solvent reconstruction; or
makes an application to court or an order is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the party; or
has a person who has become entitled to appoint a receiver over its assets or a receiver is appointed over its assets; or
(if the party is an individual), is the subject of a bankruptcy petition or order; or
has a creditor who attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
any event occurs, in any jurisdiction, to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause, 37; or
suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(if the party is an individual), dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
has a change of control or ownership;
in the case of the Buyer, Broadcaster shall be entitled:
to suspend the Campaign from broadcast or to remove Advertisements from any of its websites until the breach is remedied; or
to terminate this Agreement without liability to the Buyer immediately by giving written notice to the Buyer (without prejudice to any remedy available to Broadcaster for any antecedent breach); and
in any such event, any balance of the price which is outstanding shall become due and payable by the Buyer immediately;
in the case of Broadcaster, the Buyer may terminate this Agreement without liability to Broadcaster immediately by giving written notice to Broadcaster.
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 Broadcaster shall no longer be permitted to use the Advertiser’s Intellectual Property (save for as set out at clause 22).
In addition to the provisions above, Broadcaster shall also be entitled to:
charge a £25 administration charge if any cheque drawn in its favour by the Buyer in purported satisfaction of any unpaid invoice is dishonored on presentation; and
charge interest on any outstanding payments at the rate of 2% per annum above the base rate of Barclays Bank plc accruing from and including the date that payment fell due until and including the date of actual payment, both before and after judgment; and/or
instruct a debt collection agency to recover any sum due and in that case all charges incurred by Broadcaster as a result of such instruction shall be payable by the Buyer in any event;
All additional charges are payable within 7 days following delivery of Broadcaster’s invoice.
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 1998) being processed by Broadcaster 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.
Any personal data transferred to the Buyer by Broadcaster pursuant to its obligations under this Agreement shall be Broadcaster’s property and the Buyer warrants that:
no personal data shall be disclosed to third parties (save to employees or to the extent required by law);
unless Broadcaster grants its express consent and such consent is detailed in the Advertisement Confirmation Order, no personal data shall be used for marketing of the Advertisers or Buyer’s products or services;
no personal data shall be transferred outside the European Economic Area without the Broadcaster’s prior written consent;
it shall, with respect to any use made or storage of personal data transferred to it by Broadcaster, comply with the United Kingdom Data Protection Act.
Broadcaster shall comply with all relevant legislation governing the processing and transfer of personal data at all times.
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.
If an Advertisement relates to sponsorship:
Broadcaster reserves the right to cancel the sponsorship at any time with no liability to the Buyer;
the Buyer must give Broadcaster 3 months written notice, to be sent by recorded delivery, to cancel the sponsorship, during which time it will continue to pay Broadcaster in accordance with clauses 16 - 18; and
Broadcaster reserves the right to alter the programming schedule over holiday periods, which may affect sponsorship credits, in such cases, Broadcaster will endeavour to give the Buyer prior notice.
The placing of an order for the broadcast of an Advertisement (and/or the display of an Advertisement on Broadcaster’s websites) shall amount to an acceptance of this Agreement.
No waiver or indulgence by Broadcaster shall be effective save in relation to the matter in respect of which it was specifically given.
These terms and conditions shall apply to each agreement for an Advertisement together with such additional terms (if any) as may be set out in the Broadcaster’s Rate Card and/or Advertisement Confirmation Order.
The Buyer may not assign this Agreement in whole or in part.
These terms and conditions together with the Rate Card and Advertisement Confirmation Order constitute the whole agreement between Broadcaster, the Buyer and the Advertiser concerning the Advertisement and supersedes all previous agreements relating to its subject matter. 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.
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.
This Agreement which incorporates these terms shall be construed under and governed by the law of England and the parties submit to the exclusive jurisdiction of the English courts.
Last updated April 2014