Bauer Media Creative Booking Terms
Bauer Media Creative Booking Terms
The “Creative Booking Terms” and conditions below set out the terms on which the Media Owner(s) agree(s) to create and deliver the Campaign, described in the “Deal Terms” and agreed prior to the Campaign start date. In the event of any conflict between the Order Confirmation and the Creative Booking Terms, the Order Confirmation shall take precedence to the extent of such conflict. Unless otherwise defined herein, all capitalised terms used in these terms shall have the meaning given in the Deal Terms.However, the following words and expressions shall have the following meaning:
· Ad Impression means the metric used to describe when a Campaign is actually served on a website (including all desk-tops, mobile sites or social sites) owned or controlled by the Media Owner;
· Advertiser shall have the meaning given in the Deal Terms but refers to the person whose products, services or brand are promoted pursuant to the Campaign, sometimes the Buyer will enter into the Deal Terms on behalf of its Advertiser client and, in such cases, references to “Advertiser” in these Creative Booking Terms are to the Buyer acting as principal on behalf and with the authority of, its advertiser client;
· Agreement shall have the meaning given in the Deal Terms but refers to the Deal Terms, these Creative Booking Terms the Schematic and, if applicable, the Data Sharing Agreement;
· Applicable Laws means all laws and regulations, advertising codes, practices and guidance and all applicable industry standards for the time being in force in the United Kingdom and the European Union, including but without limitation such regulations, standards and guidance as may be published by the Advertising Standards Authority, which apply to the provision of services hereunder;
· Assets means any and all text, audio, graphics, digital files, photographs, film and all accompanying product, brand or other information used for the Campaign or incorporated in Campaign Material and which is provided by the Advertiser or any persons acting on its behalf;
· Buyer shall have the meaning given in the Deal Terms but (if there is no such reference) refers to the person with responsibility for all payment obligations to the Media Owner for the Campaign. From time to time Campaign charges may be paid for by a barter company (this will be detailed in the Deal Terms) and, for the purposes of these Creative Booking Terms, the “Barter Company” shall also be referred to as the Buyer;
· Campaign means the promotional campaign developed under this Agreement and delivered on the platforms listed in the Order Confirmation;
· Campaign Material means any material whether in print, digital, audio-only, audio-visual or any other form created and delivered by Media Owner for the Campaign;
· Campaign Summary means the document which outlines in detail the delivery of the Campaign, which can be updated from time to time with agreement of the Parties, and which can also be referred to as the Schematic;
· Data Protection Legislation means all applicable data protection and privacy legislation and any guidance or codes of practice issued by the Information Commissioner from time to time;
· Data Sharing Agreement means an Agreement that the Advertiser / Buyer must enter into before personal data is shared for use by Advertiser / Buyer (subject always to third-party consents), and which governs Advertiser / Buyer’s use of such personal data;
· Impacts means the gross number of opportunities to hear (“OTH”) radio advertising, calculated by multiplying the total reach of the Campaign by the average OTH according to RAJAR data.
· Impressions means Ad Impressions and Page Impressions, they are a measurement for delivery of a digital Campaign on Media Owner’s websites, mobile applications or social channels;
· Intellectual Property means any and all patents, design rights, utility models, unregistered or registered trade marks, business or trade names, service marks, copyright, know-how and all other similar rights of a corresponding nature;
· Media Owner means: (i) Bauer Consumer Media Limited with respect to development and delivery of all print advertising together with all digital editions of print publications; (ii) Bauer Radio Limited with respect to all radio advertising; (iii) The Box Plus Network Limited with respect to development and delivery of all television promotion; and (iv) either or both of Bauer Consumer Media Limited, Bauer Radio Limited, and The Box Plus Network Limited with respect to digital advertising services. However, for digital advertising, The Box Plus Network Limited is only responsible for advertising on its associated online platforms. All Media Owners participating in the Campaign will be detailed in the Deal Terms;
· Page Impression means with respect to advertising served on a website pursuant to this Campaign, a file or a combination of files sent to an end-user as a result of the end-user's request being received by Media Owner’s server ;
· Rich Media Creative means non "gif" or "jpeg" formats, typically "flash" advertisements and similar;
· Schematic means the document which outlines in detail the delivery of the Campaign, which can be updated from time to time with agreement of the Parties, and which can also be referred to as the Campaign Summary; and
· Standard Creative means “gif” or “jpeg” formats.
1. The Parties shall cooperate in good faith to ensure the Campaign is delivered in accordance with the specifications and time frames set out in the Deal Terms and, particularly, with the Schematic. The Advertiser accepts that, from time to time but with prior agreement, the Schematic may be updated, to reflect changes to Campaign delivery. In such circumstances, Media Owner shall circulate an updated Schematic to the Advertiser.
2. To the extent that Media Owner is responsible for the development, design and creation of Campaign Material, the Parties shall liaise in good faith to determine the concept and detail of such material prior to the Campaign Start Date (and always in accordance with the agreed deadlines and timeframes for delivery and approvals set out in the Schematic or in these Deal Terms, the Schematic taking priority with respect to all timeframes stated therein which are longer than those set out herein). Media Owner will create all Campaign Material in accordance with the applicable style relevant to the media platform chosen for delivery. The Advertiser’s suggestions with respect to the style of the Campaign Material will, however, be considered by Media Owner, acting reasonably and in good faith. Draft versions of all Campaign Material shall be provided to the Advertiser for approval and such approval shall not be unreasonably withheld or delayed. Communication from the Advertiser should be made within 48 hours of receiving draft Campaign Material and, if the Advertiser, does not approve of the draft Campaign Material, it shall provide details of all reasonably required changes which, if made, would mean its approval will be given. Failure to communicate within 48 hours shall be interpreted as the Advertiser’s approval. Media Owner reserves the right to charge the Advertiser additional amounts for excessive changes (or changes which are materially different to those previously agreed) required to the draft Campaign Material and the Advertiser accepts that such required changes may cause a delay to the Campaign start date. However, each Media Owner shall use its reasonable commercial endeavours (subject to restrictions imposed by Applicable Law or any reason set out in clause 5, below) to comply with the Advertiser’s requested changes in time for the Campaign start date. Once approved, Media Owner shall make no material changes to Campaign Material without seeking additional approval from the Advertiser.
3. TV content must be submitted to Clearcast (the “Regulator”) for approval before its planned transmission date. The Advertiser accepts that it must approve all script and/or storyboards for such content at least seven (7) days before it is due for transmission. Media Owner will not be in breach of its obligations under this Agreement if TV content cannot be aired due to the Advertiser’s failure to approve the draft TV content at least seven (7) days before the planned transmission date, which then results in a delay in submitting it to the Regulator. The latest date that TV content must be submitted to the Regulator will be detailed in the Deal Terms. If TV content is rejected by the Regulator or amendments are required, Media Owner shall revert to the Advertiser with the Regulator's requirements and shall amend the TV content to comply with the Regulator’s instructions. Media Owner shall not be liable for any failure to meet an agreed transmission date to the extent that this is due to revisions required by the Regulator. Under no circumstances shall Media Owner be required to broadcast TV content that has not been approved by the Regulator.
4. ASSET DELIVERY.
4.1 For all Campaign Material due for publication in a print publication or any digital version of a print publication (hereinafter referred to as a “Title”), the Advertiser must deliver all Assets to Media Owner, in accordance with Media Owner’s technical specifications, no later than: (i) 21 days before the “on sale” date in respect of monthly and fortnightly Title; or (ii) 7 days before the “on sale” date in respect of weekly Titles.
4.2 For all Campaign Material due for broadcast on any of Media Owner’s radio stations:
(i) if and to the extent Media Owner is responsible for the development and creation of the Campaign Material, the Advertiser shall deliver to Media Owner all Assets necessary for Media Owner to develop the Campaign Material (in the format and style agreed with Media Owner in advance) at least 14 working days before the Campaign start date (unless otherwise detailed in the Schematic);
(ii) if the Assets comprise the complete radio advertisement, the Advertiser shall deliver to Media Owner all Assets (in the format and style agreed with Media Owner in advance, together with all consignment notes, rotation details and RadioCentre approvals) at least 3 working days before the Campaign start date.
4.3 For all Campaign Material due for digital delivery (whether via a website, application, email or social media) the Advertiser must deliver Assets to Media Owner, before the deadline, pre-agreed between the Parties, and set out in the Schematic. All Assets due for delivery via a digital platform must comply with Media Owner’s “Advertising Specifications” (at: http://www.bauermedia.co.uk/adspecs). Media Owner will have no obligation to publish digital advertising if Assets are not delivered to Media Owner before the agreed deadline. If Assets are delivered to Media Owner after the agreed deadline but by midday on the day prior to the Campaign start date, Media Owner may at its discretion (but without any obligation to do so) pro rata down the number of agreed Impressions to be delivered for each day that the Assets are later than the agreed deadline. For example, if a Campaign is scheduled to run for 20 days and the number of Impressions ordered is 100,000 then, if the Assets are delivered 2 days after the deadline, then Media Owner may deliver 90,000 Impressions rather than 100,000. However, the Buyer / Advertiser must still pay for the full 100,000 Impressions.
4.4 Save where such failure is caused solely by the Media Owner, Media Owner reserves the right to charge the Advertiser reasonable costs and expenses (payable by the Buyer) if the Advertiser fails to supply Assets which comply with Media Owner’s specifications either at all or by the agreed time. The Advertiser also acknowledges that a delay in providing Assets to Media Owner may cause delay in the development and/or distribution of the Campaign Material and /or the Campaign as a whole and Media Owner shall not be liable for such delay.
4.5 Failure to supply Assets shall not diminish the Buyer’s responsibility to pay all charges as specified in the Deal Terms, even if such failure results in a delay, suspension or cancellation of the Campaign.
5. Media Owner may, in its sole but reasonable discretion, refuse to broadcast, publish or otherwise publicly communicate any Assets or any Campaign Material in its entirety, or, if broadcast or public communication has already commenced, refuse a future broadcast or public communication, or require an amendment to any Assets or Campaign Material prior to any broadcast or public communication, if:
5.1 reasonably required to comply with any legal or moral obligations placed on Media Owner;
5.2 reasonably required to avoid infringing a third party's rights or Applicable Laws;
5.3 reasonably required to avoid / remedy the risk of bringing Media Owner into disrepute or harming its reputation;
5.4 reasonably required to avoid / remedy the breach of Media Owner‘s internal policies or brand guidelines; or
5.5 the Buyer has failed to pay Media Owner the charges for the Campaign as detailed in and in accordance with the Deal Terms.
6. If Media Owner requries an amendment to any Assets then the Advertiser shall provide such amended Assets to ensure they are recieved at least 3 days before the Campaign start date. If Media Owner must amend Assets or Campaign Material pursuant to clause 5, above, Media Owner reserves the right to charge the Buyer for reasonable production charges associated with such amendment.
7. MEDIA OWNER WARRANTIES. Each Media Owner jointly and severally warrants and promises to the Advertiser that they are entitled to enter into this Agreement, to grant the rights, and to perform the obligations set out in it and that during the Campaign Term and with respect to the services delivered pursuant to this Agreement:
7.1 they shall not knowingly do or say anything which is intended or is reasonably likely to cause harm to the Advertiser’s reputation or to otherwise bring the Advertiser into disrepute;
7.2 they shall each perform their obligations with reasonable care and skill, and in accordance with good industry practice and Applicable Laws (defined below);
7.3 to the best of their knowledge, none of the Campaign Material shall be obscene, offensive, defamatory or unlawful and would not, if published or broadcast, promote discrimination based on race, sex, religion, physical disability or age. Media Owner does not give any warranties or assurances with respect to any Assets; and
7.4 in connection with this Agreement, they shall comply with Applicable Laws relating to anti-bribery, anti-corruption and anti-money laundering.
8. BUYER / ADVERTISER WARRANTIES.
8.1 The Buyer and the Advertiser severally warrant and promise that:
(i) they are entitled to enter into this Agreement, to grant the rights, and to perform their respective obligations set out in it;
(ii) during the Campaign Term, neither of them will knowingly do or say anything which is intended or is likely to cause harm to Media Owner’s reputation or to otherwise bring them or any of their media platforms into disrepute; and
(iii) in connection with this Agreement, they shall each comply with Applicable Laws relating to anti-bribery, anti-corruption and anti-money laundering.
8.2 In addition, the Buyer warrants and promises that, with respect to all payments due under this Agreement, and where otherwise indicated, it is contracting with Media Owner as a principal and that it is authorised by the Advertiser to do so. The Buyer will indemnify Media Owner against any claim made by the Advertiser arising from not having such authorisation.
8.3 In addition to the warranties given at clause 8.1, above, the Advertiser warrants that:
(i) it has obtained or will obtain all clearances and permissions (and shall pay all associated costs) necessary for exploitation of the Assets, by the Media Owner, pursuant to this Agreement and therefore Media Owner’s use of such Assets will not violate or infringe any 3rd party Intellectual Property, privacy, moral, or other proprietary rights;
(ii) to the best of its knowledge, all information supplied to the Media Owner for use in connection with the Campaign or included within the Assets is accurate, complete and true and the Advertiser shall immediately notify the Media Owner in the event of any change, or expected change, which would alter such accuracy, completeness or truth;
(iii) in respect of any Assets which contain the name or voice or other contribution of a living person, the Advertiser has obtained the authority of such living person to make use of their name or voice or contribution in accordance with this Agreement;
(iv) in relation to any financial promotion (as defined under the Financial Services and Markets Act 2000), the Advertiser is, or the Assets have been approved by, an authorised person within the meaning of that act or the Campaign Material is otherwise permitted under the act, under the Financial Promotion Order 2001, or under any other legislation subordinate to the act;
(v) the Assets and each Media Owner’s use of them in accordance with this Agreement complies with Applicable Laws and will not constitute a libel or slander, nor be offensive, indecent, nor, if published or broadcast, would promote discrimination based on sex, race, religion, disability or age;
(vi) the Assets do not contain viruses, bugs, worms, Trojan horses, harmful codes or any other form of defect or contamination which could cause temporary or permanent damage to or will otherwise impair or harm or cause the malfunction of the software or hardware of any digital platforms on which Campaign Material will be delivered pursuant to this Agreement.
9. INDEMNITY. The Advertiser or Buyer (as applicable) shall indemnify each Media Owner and shall keep them fully and effectively indemnified and hold them harmless from and against all costs (including reasonable legal costs), losses, damages, expenses or liabilities arising out of or in connection with:
9.1 a failure by the Buyer to pay any of the Charges due under this Agreement; and
9.2 any third party claims made against a Media Owner(s) that:
(i) the Assets infringe any Intellectual Property or other proprietary right belonging to a third party,
(ii) any information which has been provided to Media Owner by the Advertiser is inaccurate;
(iii) in respect of Assets which contain contributions made by a living person, their contribution has not been authorised for use in the Campaign; or
(iv) the Assets breach, or the Advertiser is in breach of, Applicable Law; or
(v) a breach of the Data Sharing Agreement.
10. Intellectual Property RIGHTS.
10.1 All Intellectual Property rights belonging to a Media Owner or their licensors prior to the commencement of this Agreement (together with all Intellectual Property rights in and to Campaign Material originated or developed by a Media Owner pursuant to this Agreement) will at all times remain its property and nothing in this Agreement shall be deemed or construed as an assignment by a Media Owner of such Intellectual Property and all goodwill and other rights arising in or generated by the use of such Intellectual Property pursuant to, and in accordance with, this Agreement will accrue to and inure to the benefit of the relevant Media Owner or its licensors as the case may be.
10.2 All Intellectual Property rights in and to the Assets will at all times remain the property of the Advertiser or its licensors and nothing in this Agreement shall be construed as an assignment by the Advertiser or Buyer of such Intellectual Property and all goodwill and other rights arising in or generated by the use of such Intellectual Property pursuant to, and in accordance with, this Agreement will accrue to and inure to the benefit of the Advertiser or its licensors as the case may be.
10.3 The Advertiser hereby grants to each Media Owner a non-exclusive, royalty-free licence, ending on expiry of the Campaign Term to reproduce, publish, communicate to the public, broadcast and incorporate (with Media Owner’s Intellectual Property) the Assets for any purpose in connection with Media Owner’s fulfilment of its obligations under this Agreement. Each Media Owner shall also have a perpetual, royalty-free licence, to store and reproduce those Assets included within Campaign Material for internal purposes and to enable them to compose case studies to promote their creative advertising services to potential clients. Aside from the rights granted pursuant to the foregoing sentence, on expiry of the Campaign Term the Media Owner shall not be entitled to retain or use the Assets.
10.4 Each Media Owner grants to the Advertiser the right to retain one copy of the Advertisement for their own internal and non-commercial purposes, subject to any restrictions imposed by third parties engaged by a Media Owner who have contributed to the Campaign Material.
10.5 Media Owner shall be entitled (but not obliged) to destroy all Campaign Material (including the Assets contained therein) in its possession, 3 months after the Campaign End Date, unless written instructions have been received from the Advertiser to the contrary.
11.1 A Party (the “Terminating Party”) may immediately, by giving written notice to the others, terminate this Agreement if another Party (the “Party in Default”):
(a) suspends, or threatens to suspend, payment of its debts, or is unable or admits an inability to pay its debts as they fall due; or
(b) 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 scheme for a solvent amalgamation or reconstruction; or
(c) has a petition filed, a notice given, a resolution passed, or an order made, for or in connection with its winding up other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction; or
(d) has an application made to court, or an order made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed over it; or
(e) has a person who becomes entitled to appoint a receiver over it assets of or a receiver is appointed over its assets; or
(f) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(g) there is a change of control of the Party in Default; or
(h) commits a material or persistent breach of this Agreement which is not capable of remedy or, if capable of being remedied, is not remedied within 15 days of the Terminating Party giving written notice to the other giving details of the breach, requiring its remedy.
11.2 If a Media Owner is the Terminating Party, it shall be entitled:
(a) to suspend delivery of the Campaign until any breach (if applicable) is remedied; or
(b) to terminate this Agreement and all charges which are outstanding shall become due and payable by the Buyer immediately.
11.3 If the Buyer or Advertiser is the Terminating Party, the relevant Terminating Party may terminate this Agreement and charges for production and delivery of the Campaign, calculated on pro-rata basis, up to and including the date of termination, shall become due and payable by the Buyer. If either the Advertiser or the Buyer is the Terminating Party, it shall have no termination rights under this Agreement if the Party in Default is the Advertiser or Buyer.
11.4 In addition to the termination rights detailed at clause 11.1, Media Owner shall also have the right to terminate this Agreement if it becomes aware of or suspects that the Buyer no longer has authority to enter into and perform this Agreement on behalf of the Advertiser. If such circumstances arise, each of the Buyer and the Advertiser shall notify the Media Owner as soon as possible, providing at least thirty (30) days’ notice before the Buyer’s authority is removed. The Agreement shall terminate on a date agreed between the Parties which is prior to the Buyer’s loss of authority. In addition, if at the date of such termination, the Campaign Term has not expired, the Advertiser shall (and shall ensure cooperation from any new media buyer it engages) sign a new agreement with Media Owner(s), on the same terms and set out herein, to govern the development, delivery of, and payment for the remainder of the Campaign. For the avoidance of doubt, the provisions of clause 11.2 shall apply with respect to termination pursuant to this clause 11.4.
11.5 A party’s termination rights under this clause 11 are without prejudice to any other right or remedy which may be available to a party on termination or expiry of this Agreement or with respect to the matters giving rise to termination of this Agreement.
11.6 On termination or expiry of this Agreement, all licences granted herein shall come to an end save for those which are expressed or are clearly intended to continue beyond expiry or termination.
12. CONFIDENTIALITY. Each Party agrees that it will not: (a) disclose Confidential Information to any third party; (b) use any Confidential Information aside from in connection with the fulfilment of its obligations under this Agreement or as expressly permitted in this Agreement; and (c) that it will take all commercially reasonable measures to maintain the confidentiality of such Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own confidential information of similar importance. “Confidential Information” means the terms of this Agreement (but not its existence) together with any information disclosed to a Party by the other, which is either marked as confidential or is disclosed in such a manner that it is reasonable to assume that the Party disclosing it, expects the other Party to keep it a secret. The obligations of this clause 12 do not apply to Confidential Information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party who is not restricted, through a non-disclosure agreement or otherwise, from disclosing it; or (iii) the receiving party develops independently as evidenced by written documentation; or (iv) such Confidential Information that a Party is compelled to disclose to a court or regulatory body. The Media Owner(s) are permitted to disclose Confidential Information to their auditors, provided that such auditors agree to keep it confidential on the same or more restricted terms as set out in this clause 12.
13.1 It is the responsibility of the Advertiser (when Media Owner provides this for approval) to check the correctness and factual accuracy of the Campaign Material, that it complies with its requirements, and Applicable Law, especially but without limitation such Applicable Laws which may be specific to the Advertiser’s industry.
13.2 Aside from with respect to any indemnity given under this Agreement, a Party shall not be liable to the other for loss of anticipated profits, loss of business, loss of anticipated savings, loss of goods, loss of contract, loss of/ or corruption of data or information or any special, indirect, consequential or pure economic loss, damages, charges or expenses.
13.2 Subject to clause 13.6 and aside from with respect to any indemnity given under this Agreement or liability under the Data Sharing Agreement, a Party’s total liability in contract, tort (including negligence or breach of statutory duty), or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to an amount equal to 1.5 x (one and a half times) the total charges paid or payable for the Campaign (as stated in the Deal Terms).
13.4 Nothing in this Agreement limits or excludes any Party’s liability for death or personal injury resulting from its negligence, as a result of the other Party’s fraud or fraudulent misrepresentation, or any other liability which cannot be lawfully excluded or limited.
13.5 Media Owner will not be liable to the Buyer or Advertiser if the success of the Campaign is less than anticipated.
13.6 It is agreed and acknowledged that individual Media Owners are each separately responsible for fulfilling their specific obligations under this Agreement. There shall be no right of action against any of the other Media Owner parties in respect of any failure to perform or comply with obligations under this Agreement for which another Media Owner is responsible. In the event that a Buyer and Advertiser wish to bring proceedings against a Media Owner in respect of the Campaign or a specific part (or parts) of it, they agree to do so in the same proceedings and shall not issue separate proceedings.
14. COMPLAINTS AND ERRORS
14.1 Media Owner is not responsible for:
(a) checking the correctness of the Campaign Material or that it fulfils the Advertiser’s requirements or expectations, this is the Advertiser’s responsibility when Campaign Material is provided for approval pursuant to this Agreement;
(b) any error in a Campaign that has been approved by the Advertiser prior to publication;
(c) the repetition of any error in Campaign Material which has been approved by Advertiser but has been ordered for public communication more than once;
(d) the distribution of Campaign Material in a particular geographic area.
14.2 Any complaint, claim or query (whether in relation to Campaign Material, Campaign delivery or an invoice) must be raised by the Advertiser, by email, within 10 working days following (as the case may be):
(a) the publication date of the Title in which the Campaign Material was published or allegedly should have been published;
(b) the broadcast of the Campaign Material or the date on which it is claimed the Campaign Material should have been transmitted;
(c) for digital advertising (but not digital Titles) the date of first publication or the date on which it is claimed the Campaign Material was intended to appear;
(d) the date of receipt by the Buyer of the invoice giving rise to the complaint, claim or query.
14.3 The raising of a complaint, claim or query in accordance with clause 14.2, above, shall not affect the Buyer’s liability to make payment in accordance with this Agreement.
14.4 If Campaign Material contains an error wholly and directly caused by Media Owner, provided that the Advertiser gives written notice to the Media Owner of such error in accordance with clause 14.2, above, and provided that the Advertiser complies with clause 14.3, Media Owner shall:
(a) if possible, not charge the Buyer the media charge for delivery of that individual piece (or pieces) of Campaign Material; or
(b) if payment of the media charge has already been made, Media Owner shall (at the Advertiser’s discretion) either correct the error and re publish the Campaign Material, without charge, extending the Campaign Term, if necessary, or credit the Buyer (for the benefit of the Advertiser) for the media charge associated with delivery / publication of that individual piece (or pieces) of Campaign Material. Such credit may then be used in any subsequent advertising or promotional campaign booked by the Advertiser.
15.1 Media Owner shall not be bound by a request to cancel the Campaign or any part thereof unless it receives notice by email:
(a) 14 working days before the date a weekly Title goes on sale;
(b) 28 working days before a fortnightly or monthly Title goes on sale;
(c) 28 working days before the Campaign start date for any digital element of the Campaign;
(d) 28 working days before the date the of scheduled broadcast for any radio or television element of the Campaign.
15.2 Any instruction received after the applicable deadline stated at Clause 15.1, above, shall not (even if followed by Media Owner) affect the Buyer’s liability to pay all applicable charges for the Campaign. If an instruction is received before the relevant deadline, the Buyer (for the benefit of the Advertiser) shall be entitled to a refund for any proportion of the media charges already paid. The Buyer shall still, however, be liable for all production charges Media Owner reasonably incurs prior to the receipt of the cancellation notice.
15.3 Media Owners may treat the fact that either the Advertiser or Buyer are deemed unable to pay their debts within the meaning of Section 123 of the Insolvency Act 1986 as a cancellation for the purposes of this clause 15.
16. Unless stated otherwise in the Deal Terms, the Media Owner has ultimate control over the display, format and positioning of advertisements on or within its media platforms. The Media Owner shall, however take the Advertiser’s concerns and suggestions into consideration. The Media Owner shall not be prohibited from publishing or broadcasting (as the case may be) advertisements for any product or business competitive to the product or business of the Advertiser, during the Campaign Term or otherwise.
17. FORCE MAJEURE. A Party shall not be liable for failure to perform its obligations hereunder, to the extent that such failure arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control including but not limited to any of the following: fires, Acts of God, flood, earthquake, windstorm or other natural disaster, strikes, interruption or failure of a utility service, failure of the internet, terrorism, key employees not being available to perform the services through death, illness or departure, or Governmental restriction (“Force Majeure”). Media Owner shall not be liable to the Buyer or Advertiser for the failure to deliver the Campaign on account of: corruption, interruption, virus or malfunction of a television channel, radio station, website or other digital platform, nor for failure of any magazine distribution system.
18. Media Owner may at its absolute discretion change the date that any Title goes on sale.
19. Campaign Reporting for digital advertising. Media Owner shall use commercially reasonable efforts to provide the Advertiser with details of the Impressions generated during the Campaign Term, 30 days after the end of the Campaign Term (“Impression Report”). The Advertiser accepts that the Impression Report shall be the sole and definitive measurement of the number of Impressions generated over the Campaign Term and shall be binding on the Parties, save in the case of a manifest error or if there is a disparity of more than 10% between the Impression Report and the Buyer’s own records. In the event of an under-delivery, of the Impressions ordered for the digital portion of the Campaign, which is greater than 10%, Media Owner in its absolute discretion may choose to either extend the Campaign Term (for the digital portion of the Campaign only) or reduce the digital media charges on a pro-rata basis so that such charges are consistent with the actual delivery of the digital part of the Campaign, as agreed between the Parties, in good faith. The Advertiser may contract with a 3rd party to host its digital advertisements. In such circumstances, the Advertiser may receive an alternative campaign delivery report from this 3rd party host. Media Owner shall have no obligation to obtain such a report for the Advertiser who accepts that such report, may show a discrepancy from the Impression Report of about 10% for Standard Creatives and about 50% for Rich Media overlays. This discrepancy will be higher if the Assets don’t comply with the advertising specifications at: http://www.bauermedia.co.uk/adspecs. During the Campaign Term and thereafter, the Advertiser must not disclose the Impression Report to any third party without the Media Owner’s prior written consent.
20. SUPPLY OF PRIZES. If the Campaign includes a Competition(s) promoted by a Media Owner for which the Advertiser is responsible for supplying and /or arranging a prize, the Advertiser, acknowledges and agrees as follows.
20.1 Media Owner will be notified to Competition entrants as the Competition “promoter” (as such term is defined by the Advertising Standards Authority) but, if necessary or desirable, the Advertiser grants Media Owner permission to refer to it as the provider of the prize at all times when the Competition is promoted as part of the Campaign.
20.2 The Advertiser warrants that it is entitled to grant Media Owner permission to provide the prize as a prize for the Competition.
20.3 Media Owner will provide the Advertiser with a copy of the competition terms and conditions (the “Rules”) for approval at least 7 days before the Competition start date. The Advertiser must then respond within 3 days and raise any objections to the description of the prize in the proposed Rules. Failure to do so shall be automatically interpreted as the Advertiser’s approval of the Rules and the description of the prize contained therein.
20.4 Once the Rules are approved, the Advertiser warrants that it will make no changes to the prize as it is described in them.
20.5 The Advertiser must notify Media Owner immediately if, for any reason, it suspects that it will be unable to supply the prize, there will be a delay, or the prize will require modification to that which is described in the Rules. The Advertiser shall then provide an alternative prize (of equivalent value and product description) which Media Owner, acting reasonably, deems appropriate.
20.6. If the Advertiser is also responsible for delivering the prize to the winner, it shall provide the winner with all information the winner reasonably requires to receive and enjoy the prize and must deliver the prize or, if not possible, contact the winner to make arrangements for delivery, within a week of the Competition end date. The prize should always be delivered to the winner within 28 days of the date that the winner is announced unless there are extenuating circumstances, in which case, the Advertiser, must keep the winner informed about when they will receive their prize and the reason for the delay. If applicable, the Advertiser will provide, before the Competition start date, contact details for its representative with responsibility for arranging delivery of the prize(s). These details will be provided to the winner(s) when Media Owner notifies them that they have won. This person will then be expected to liaise with the winner(s) and must confirm to Media Owner, in writing, when the winner(s) has received its prize and (if applicable) when the winner(s) has been contacted about their prize, to arrange its delivery.
20.7 The Advertiser is responsible for ensuring that the prize complies with Applicable Laws, health and safety legislation, trading and other industry standard regulations.
20.9. As between Media Owner and the Advertiser, the Advertiser is solely responsible for the prize and any risks associated with it. The Advertiser acknowledges and agrees that Media Owner is not responsible and shall not be liable in any way for the prize or for any costs, damages, liability or injury arising out of or connected with it and the winner(s)’s receipt and enjoyment of it.
20.10 If a competition entrant or winner complains to Media Owner, the Advertiser must take all reasonable steps to resolve and/or rectify such complaint, to the extent that it is their responsibility. This obligation includes providing a substitute prize (of equivalent value and product description) if the original prize is defective or not available.
21.1 Personal data concerning the winner and other competition entrants may be transferred to the Buyer: (a) to assist in the administration of the Competition; or (b) for marketing purposes, subject allows to obtaining relevant third-party consents. All transfers of personal data shall be subject to the Buyer’s compliance with Data Protection Legislation. The transfer of personal data to the Buyer for marketing purposes shall also be subject to the Buyer entering into Bauer’s Data Sharing Agreement, which shall form part of this Agreement. Advertiser’s use of such personal data shall be governed strictly by the terms of the Data Sharing Agreement.
22 RADIO AIRTIME DELIVERY AND SPONSORSHIP.
22.1 Media Owner shall endeavour to deliver the agreed adults 15+ Impacts (as detailed in the Schematic) for the Campaign. Whilst Media Owner will also endeavour to accommodate requested “Laydowns” (meaning the agreed broadcast schedule or number of spots, as detailed in the Schematic), Media Owner reserves the right to change radio programming features and broadcast times. If Media Owner is unable to accommodate the agreed Laydowns, it shall reconcile this against the agreed Impacts for the Campaign. Bauer will not reimburse the Advertiser for the number of spots missed according to the Laydown.
22.2 If part of the Campaign is for sponsorship of a radio programme or feature, the Media Owner reserves the right to cancel or suspend this element of the Campaign at any time. The Advertiser accepts that the Media Owner may also alter its radio programming schedule over holiday periods. If the radio sponsorship will be cancelled, suspended or its radio programming schedule altered, Media Owner will endeavour to give the Buyer prior notice and will always deliver the agreed number of Impacts (as such term is defined in the Deal Terms).
23.2 No variation or addition to this Agreement shall be effective unless specifically agreed to in writing by the Parties.
23.3 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.
23.4 Neither the Buyer nor Advertiser may assign this Agreement in whole or in part.
23.5 This Agreement is governed by English law and the Parties submit to the exclusive jurisdiction of the English courts.
23.6 This Agreement shall take legal effect on the last date of signature stated below.
23.7 This Agreement may be executed in any number of counterparts and by each of the Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile (or other commonly-used electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
23.8 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement. The Parties each confirm that they have not entered into this Agreement on the basis of any representations that are not expressly incorporated herein.
23.9 A waiver, delay or indulgence given by a Party with respect to another Party’s non-compliance with this Agreement must be expressly given in writing and shall only be effective in relation to the specific matter in respect of which it was given.
23.10 If any payment due under this Agreement is late, Bauer shall be entitled to charge interest on the outstanding balance at a rate of 2% above the base rate of Barclays Bank Plc. accruing day to day from and including the date that the invoice became due for payment until the date it is paid in full (whether before or after judgement).
23.11 In there is any conflict between the Deal Terms and theses Creative Booking Terms, the Deal Terms shall take precedence to the extent of such conflict.