TERMS AND CONDITIONS OF SALE
Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
The following definitions and rules of interpretation apply in these terms and conditions of sale (the “Terms“):
‘Advertisement(s)‘ means the publication on any platform operated by Us of Your advert and may include digital and printed items and promotional materials, as appropriate;
‘Advertiser‘ or ‘You‘ or ‘Your‘ means You and/or Your agent;
‘Background Intellectual Property Rights‘ means any Intellectual Property Rights in any materials used to deliver the Advertisement which are already in existence prior to Your provision of the Advertisement;
‘Booking Confirmation Email‘ has the meaning given in clause 3.2;
‘Company‘ or ‘Our‘ or ‘Us‘ or ‘We‘ means New Age Digital Media Ltd a company incorporated in England and Wales with
‘Confidential Information’ means all information of a technical, commercial, business, financial, operational, administrative, marketing or any other nature whatsoever including information relating to its current, prospective and previous customers, members, employees and suppliers, (including personal data), whether in oral, tangible or documentary form (including digital, electronic and magnetic media), whether marked or identified as being proprietary or not;
‘Contract‘ means the contract between the Company and the Advertiser to perform the Services to which these Terms apply;
‘Force Majeure Event‘ an occurrence beyond the control and without the fault or negligence of the party affected and which that party is unable to prevent or provide against by the exercise of reasonable diligence, including, without limitation, acts of God, fire, flood, earthquake, unusually severe weather or elements of nature, war, embargo, riot, civil disorder, rebellion, revolution, epidemic, pandemic or any law or action taken by a governmental or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
‘Intellectual Property Rights‘ means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, moral rights, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
‘Order‘ means Your order for services as set out in an email addressed to Your account executive at the Company;
‘Proofs‘ means samples of the copy and layout of the Advertisement or artwork before it is published by the Company;
‘Services‘ means the creation of an Advertisement, the publication of an Advertisement or the production of an item all as set out in the Booking Confirmation Email;
‘Working Day‘ means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2. Our Contract With You
2.1 These Terms only apply to business-to-business transactions for the supply of the Services. For the avoidance of doubt, We do not supply these Services to individual consumers.
2.2 These Terms apply to the Order by You and the supply of Services by Us to You. They apply to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.3 These Terms are made only in the English language.
3. Formation of the Contract
3.1 We operate the Website. You may place an Order via the Website by following the onscreen instructions. You may only submit an Order using the method set out on the Website. The Order constitutes an offer by You to purchase Services in accordance with these Terms.
3.2 The Order shall only be deemed to be accepted when We send to You an email confirming Your Order (the “Booking Confirmation Email“) at which point, and on which date the Contract shall come into existence.
3.3 Notwithstanding clause 3.2, You may amend any errors before submitting Your Order to Us. You are responsible for ensuring that Your Order is complete and accurate.
3.4 The Contract will relate only to those Services set out in the Booking Confirmation Email. We will not be obliged to supply any other service which may have been part of the Order.
4. Terms of the Contract
4.1 We shall supply the Services to You in accordance with any specifications confirmed in/by the Booking Confirmation Email and these Terms.
4.2 We shall use reasonable endeavours to meet any performance dates accepted in a Booking Confirmation Email but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 We warrant to You that the Services will be provided using reasonable care and skill.
4.4 All Advertisements are accepted subject to space being available and subject to the copy being acceptable to Us. We reserve the right to suspend, omit, cancel or change any Advertisement or series of Advertisements at any time. Should this be due to Your act(s) or default(s) or those of Your agents, then We will charge You for the space reserved for the Advertisement, notwithstanding that the Advertisement has not been published.
4.5 Unless stated otherwise in the Booking Confirmation Email, We reserve the right not to start the performance of the Services during the period of seven (7) days starting from the day after the Booking Confirmation Email was sent to You.
4.6 It is Your responsibility to supply the copy to Us by the relevant deadline as notified by Us. If the copy is not received by Us by the relevant deadline We may at Our sole discretion, either write the article utilising available online resources, produce an advertisement on behalf of the Advertiser or omit the copy from the Website. In any event the space reserved for the Advertisement shall be paid for in full. Corrections to the copy may not be incorporated unless Proofs are returned by the given deadline.
4.7 While every care is taken to avoid errors, We cannot accept liability for any errors or omissions caused by You.
4.8 It is Your responsibility to check Your Advertisement is correct and inform Us of any mistakes in writing as soon as possible but in any event not later than the relevant deadline set out in the Order.
4.9 The rates quoted are subject to a suitable copy or artwork being supplied by You. If additional production work is required We may charge an additional sum to cover such costs. Proofs will be supplied if requested in writing by You.
4.10 All copies, artwork, film, etc., is held at Your own risk and should be appropriately insured. We reserve the right to destroy all such copies, artwork, film, etc which has been in its custody for six (6) months from the date of its last appearance.
4.11 Subject to clause 4.12, We retain the Intellectual Property Rights in all Advertisements created or amended by Us and the said Advertisement may not be reproduced in part or in full without our written permission. All copies, artwork and films, etc. (and all Intellectual Property Rights relating thereto) with regard to the above remain the Company’s property.
4.12 Notwithstanding clause 4.11, You will retain ownership of the Background Intellectual Property Rights and You hereby grant to Us an irrevocable, worldwide, royalty-free, perpetual, transferable, sub-licensable licence to use the Background Intellectual Property Rights to the extent necessary to maximise Our use of the Advertisement.
4.13 You hereby grant to Us a fully paid-up and worldwide royalty free licence to use, copy and modify Your copyrighted material, specified in the Order, for the purposes of providing the Services.
4.14 You represent and warrant to Us that Your Advertisements do not contravene any laws in the jurisdictions in which the Advertisement(s) will appear, are not defamatory, a contempt of court or in any other way illegal or an infringement of any third party Intellectual Property Rights.
4.15 You will indemnify Us in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Us as a result of or in connection with (i) any breach of the representations and warranties set out in clause 4.13 and (ii) any claim or allegation made against Us by any third party claiming that the Advertisement (or any part of it) infringes their Intellectual Property Rights.
4.16 Subject to clause 5, copy and cancellation dates, rates and discounts are as published by Us from time to time and copies of these are available on request. These form part of this Contract. Advertisement rates are subject to revision at any time, by the giving of two weeks’ notice of such revision by Us. In the event of a rate increase subsequent to the placing of an Order, You will have the option either to cancel the Contract (or unfulfilled portions of such Contract), without penalty or to accept fulfilment at the revised rate.
4.17 For new Advertisers in any of our titles, pre-payment may be required for the first Advertisement. Please contact Your representative to discuss how to make payment.
4.18 Payment terms are as set out in the Booking Confirmation Email. In the event that any one or more invoices are overdue then all of the invoices We have issued to You become overdue and all discounts given by Us to You are forfeited. Interest will be charged by Us on overdue accounts in accordance with the Late Payment of Commercial Debts (Interest) Act 1988.
4.19 Discounts will only apply to Advertisements as agreed with Us, appearing within a 12-month period from the date of Your first Advertisement. If You terminate or cancel the Contract or any Order after we have commenced providing the Services You will lose any discount which would otherwise have applied to the Advertisements which have been or are to be published.
4.20 Physical items such as trophies and print copies are deemed to be ‘delivered’ upon the issuing of a tracking reference number. You are required to check the delivery address upon receipt of the invoice. Any returns of such items may incur additional postage costs for redelivery. Any damaged or defective items are to be notified to Us along with relevant images within 14 days of receipt in order for replacements to be considered. Please also note that you are responsible for any customs charges along with any additional costs arising from the import of items.
4.21 All amounts payable by You under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (‘VAT‘). Where any taxable supply for VAT purposes is made under the Contract by Us to You, You shall, on receipt of a valid VAT invoice from Us, pay to Us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.1 Without affecting any other right or remedy available to it, either party may immediately terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract and (if such breach is remediable) does not remedy such breach within 30 days of that party being notified to do so;
(b) the other party 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 any of its creditors;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(d) (being a company and prior to the commencement of a formal insolvency process) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (‘IA1986‘) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA1986;
(e) the terms of clause 12.3 apply;
(f) the other party suspends or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(g) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy
5.2 Without affecting any other right or remedy available to Us, We may terminate the Contract with immediate effect by giving written notice to You if:
(a) You fail to pay any amount due under the Contract on the due date for payment; or
(b) You have a change of control in accordance with section 1124 of the Corporation Tax Act 2010.
5.3 Subject to clause 5.4, You may terminate the Contract at any time by giving two (2) Working Days’ written notice to Us at , beginning on the day the Contract is in force. Any cancellation requests received after two (2) Working Days are chargeable, if no work has been carried out on Our part a 50% cancellation charge will be applied.
5.4 Clause 5.3 shall not apply, and the termination rights set out in clause 5.3 will end as soon as We start providing the Services.
5.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
6. Our Refunds Policy
If You cancel the Contract in accordance with clause 5.3 of these Terms or We are unable to perform the Services, We will provide a full refund of the price paid for the Services. The refund will be processed as soon as possible and, in any case, within 30 days from the notice of cancellation. No refunds will be given beyond two (2) Working Days of the Contract being in force.
7. Written Communications
We will contact You mainly by e-mail. For contractual purposes, the Advertiser agrees to this electronic means of communication and acknowledges that all contracts, notices, information and other communications that We provide electronically comply with any legal requirement that such communications be in writing.
Notices must be given to Us by email. We may give notice to You at either the e-mail or postal address You provide to Us when placing an Order. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or the second Working Day after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
10. Resolving Problems
Any complaints should be forwarded in writing to Us by no later than one (1) month after the date of publication of the
11. Transfer of Rights and Obligations
11.1 The Contract is binding between You and Us and Our respective successors.
11.2 You may not transfer, assign, charge or otherwise dispose of this Contract, or any of Your rights or obligations arising under it, without the Company’s prior written consent.
11.3 We may transfer, assign, charge, sub-contract or otherwise dispose of this Contract, or any of Our rights or obligations arising under it, at any time during the term of the Contract.
12. Events Outside Our Control
12.1 Provided it has complied with clause 12.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party“), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
12.2 The Affected Party shall:
12.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
12.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
12.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than seven (7) days, the Party not affected by the Force Majeure Event may terminate this Contract by giving two (2) Working Days written notice to the Affected Party.
13. Limitation of Liability
13.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of terms implied by section 2 of the Supply of Goods and Service Act 1982 (title and quiet possession).
13.2 Subject to clause 13.1, Our total liability to You in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
13.3 In clause 13.2:
(a) cap. The cap is 100% of the total charges in the contract year in which the breaches occurred;
(b) contract year. A contract year means a 12 month period commencing on the date of the contract or any anniversary of it;
(c) total charges. The total charges means all sums paid by You and all sums payable by You under the Contract in respect of the Services actually supplied by Us, whether or not invoiced to You; and
(d) total liability. Our total liability includes liability in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract;
13.4 This clause 13.4 sets out specific heads of excluded loss:
(a) Subject to clause 13.1, We will not be liable to You for the following types of loss:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of damage to goodwill; or
(vii) indirect or consequential loss.
13.5 We have given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.6 This clause 13 shall survive termination of the Contract.
14.1 Each party undertakes to the other that it shall not at any time during the Contract or for a period of five (5) years after termination or cancellation disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
15. This clause 14 shall survive termination of this Contract. How may We Process Your Personal Information
16. Entire Agreement
16.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
If We do not insist that You perform any of Your obligations under the Contract, or if We do not enforce Our rights against You, or if We delay in doing so, that will not mean that We have waived Our rights against You or that You do not have to comply with those obligations. If We do waive any rights, We will only do so in writing, and that will not mean that We will automatically waive any right related to any later default by You.
Each clause of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining clause will remain in full force and effect.
19. Third Party Rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20. Governing Jurisdiction
This Contract and any dispute arising in connection with it is governed by and construed in accordance with the laws of England and any dispute arising in connection with this Contract are subject to the exclusive jurisdiction of the courts of England and Wales.