1.1 "OFCOM" means the Office for Communications and/or any successor or replacement body.
1.2 "The Act" means the Broadcasting Act 1990 or as amended from time to time.
1.3 "The Channel" means the official television channel "THE BROADCASTER".
1.4 "The Company" means Media Icon (MEDIA ICON) Limited acting as agent of the Broadcaster.
1.5 "The Advertiser" means a person, firm or company making a booking otherwise than through or by means of an Advertising Agent and includes its successors in title and assigns.
1.6 "Advertising Agent" means a person, firm or company carrying on the business involving the selection and purchase of advertising space or time for persons wishing to advertise.
1.7 "Advertisement Copy" or "Copy" means any advertising material intended for transmission by the Company. Delivery of Advertisement Copy shall be deemed to have been made only when the Company's technical requirements have been met, and the relevant transmission instructions have been given.
1.8 "Working Day" means Monday to Friday inclusive in each week except any Bank or Public Holiday.
1.9 ‘Clearcast' means the Ofcom recognized body responsible for the approval for broadcast of advertisements in the UK on commercial television, or any superseding replacement body.
2.0 ‘Conditions' means these General Airtime Terms and Conditions;
2.1 ‘Contract' means the agreement between Advertiser or Agency (as the case may be) and the company of which these Conditions form part and includes all schedules and appendices.
2.2 ‘Force Majeure' means any event beyond the reasonable control of either the Company or Advertiser or Agency, as applicable, and shall include (but not by way of limitation) strikes, lockouts, riots, sabotage, acts of war, terrorism, hostilities or piracy, destruction of essential equipment by fire, explosion, storm, flood, earthquake, and delay caused by failure of power supplies or transport.
2. ADVERTISING AGENCIES AND COMMISSIONS
2.1 An Advertising Agent shall be deemed to contract as principal in all respects and as such will be personally responsible for the payment of accounts.
2.2 Advertising Agent commission of no more than fifteen per cent (15%) will be paid by way of deduction by the Company to all Advertising Agencies who satisfy the conditions herein and comply with the Act and any amendments thereto. The commission will be calculated on the basis of the rates applicable (i.e. excluding surcharge for late payment or late Copy), less discount allowed. Any amendments to these arrangements will be at the discretion of the Company.
2.3 The Company will in its sole discretion consider applications for commission from overseas Advertising Agencies. Commissions will be deducted from invoices.
3. ACCEPTANCE OF TERMS AND CONDITIONS
3.1 By placing an order with the Company (for advertising time on its television channels), the Advertising Agent or Advertiser as the case may be, accepts in full these terms and conditions.
3.2 No terms or conditions other than those set forth herein or any variations thereof under Conditions 11 and 12 shall be binding upon the Company or the Advertising Agent or the Advertiser as applicable unless in writing and signed on behalf of both the Company and the Advertising Agent or the Advertiser.
4. ACCEPTANCE OF ADVERTISEMENTS
4.1 Advertisements will only be transmitted if they are approved by THE BROADCASTER, satisfy its technical requirements and comply with the Act or any amending or superseding enactment and we recommend should conform to the Codes and Guidelines, and in particular the Code of Advertising Standards and Practice issued by OFCOM.
4.2 Advertisement Copy must be delivered to the Company not less than ten (10) working days before the date of the intended transmission. In exceptional cases the Company may in its sole discretion accept Advertisement Copy delivered less than ten (10) working days before the date of transmission. In such cases the Company is not obliged to notify the Agency or the Advertiser as the case may be if it decides the Copy is unsuitable and also where Copy is not delivered at least [five (5)] clear working days before the intended transmission date, the Agency or the Advertiser as the case may be shall in the discretion of the Company be liable to pay in full for the advertising time booked whether or not any Copy is in fact transmitted.
Advertisement Copy or changes in transmission instructions accepted in the absolute discretion of the Company less than three (3) clear working days before the intended transmission date shall at the discretion of the Company, be subject to a surcharge of £250 (plus VAT) per copy, payable within thirty (30) days.
4.3 If the Company or THE BROADCASTER decides that the Advertisement Copy is unsuitable, the Company shall notify the Agency or the Advertiser as the case may be who must supply alternative Copy as soon as possible and in any case not later than five (5) clear working days prior to the intended transmission. Alternative Copy if accepted at shorter notice shall at the discretion of the Company be subject to a surcharge of £250 (plus VAT) per Copy payable within thirty (30) days. Should alternative Copy not be supplied or not be accepted the Company shall be entitled to be paid by the Agency or the Advertiser as the case may be in full for the advertising time booked.
4.4 The provisions of paragraphs 4.2 and 4.3 above shall be without prejudice to any special arrangements for bookings made at shorter notice.
4.5 The Company shall not be held responsible for any addition to, changes in or deletions from any Advertisement Copy required by OFCOM/CLEARCAST or delays resulting there from.
4.6 The Company reserves the right in its absolute discretion and without incurring any liability, to decline to transmit any Advertisement Copy without giving any reason in writing for so declining but the Agency shall not be liable to pay for any Advertisement Copy which the Company so declines to transmit (unless the reason for declining to transmit arises out of any other provision of these Conditions in which case the Agency or Advertiser as the case may be shall be liable for the charges referred to herein).
4.7 The Company reserves the right in its absolute discretion to do any act or thing in respect of the transmission of any material or part thereof (including the fading, editing, or cutting thereof), which is found to contain unsuitable material and the Company shall not thereby incur any liability to the Agency or the Advertiser or any third party who shall have no claim whatsoever for damages or otherwise in respect of any non-transmission of any such Advertisement Copy or part thereof but the Agency or Advertiser shall remain liable to the Company for the charges payable hereunder for such Advertisement Copy.
4.8 The Company reserves the right to restrict any repeat transmission of the same Advertisement Copy.
4.9 Subject to the provisions of Clause 11, all bookings are accepted on the understanding that they will be paid for at the rates in force on the date of transmission.
4.10 The Company reserves the right at its absolute discretion to refuse Advertisement Copy advertising more than one product.
4.11 The Company will use its reasonable endeavours to adhere to advertisement rotation instructions but shall not be liable for any failure to comply with any such instructions.
4.12 The Advertiser hereby authorises the Company to transmit all Advertising Copy delivered pursuant to terms and conditions.
5. DATES/TIMES OF TRANSMISSIONS
5.1 The Company does not guarantee that the times and/or dates of transmission will be adhered to. If any Advertisement Copy is not transmitted on the day and in a segment at the rates arranged, the Company will endeavour to offer a transmission at some other date which may be accepted instead by the Advertising Agent or the Advertiser. If any offer of such a transmission is not accepted (or not made) the original booking shall be cancelled and the Advertising Agent or the Advertiser shall have no claim against the Company in respect of non-transmission or for any expenses or damage whatsoever incurred as a result thereof. The Company shall make no charge to the Advertising Agent or the Advertiser for such booking but the Company at its discretion shall be entitled to be paid by the Advertising Agent or the Advertiser any agreed fees or expenses as the Company has incurred in respect of any facilities arranged or provided.
5.2 The Company shall incur no liability for any failure to transmit all or any part of any Advertisement Copy transmitted or for any failure to adhere to advertisement rotation instructions, except that if a total failure to transmit shall be due to the fault of the Company the Advertisement Copy shall not be charged for. For the avoidance of doubt the Company shall incur no liability for indirect, consequential or economic loss howsoever arising including (but not by way of limitation) any failure to meet any agreed rating target (whether or not guaranteed).
5.3 In the event of any significant alteration(s) to the Company's transmission schedule the Company reserves the right to re-establish the breaks concerned as unsold time. In the case of a current booking in an affected break the Company will seek to negotiate an alternative transmission time, in consultation with the Advertising Agent or Advertiser as the case may be who will otherwise be entitled to cancel that booking.
5.4 Advertisement Copy appearing within five (5) minutes of the segment band will normally be regarded as appearing within the segment. Advertisement Copy booked for transmission at a specific time will be transmitted in the commercial break nearest to that time.
5.5 In the event of the Company's transmission activities being restricted, curtailed or prevented by any law or any other act or thing beyond the Company's control, the Company may at any time, notwithstanding anything herein contained forthwith determine any contract without prejudice to the Company's right to be paid by the Advertising Agent or Advertiser any monies due and owing by the Agency or the Advertiser or the Company at the time of such determination.
5.6 No protection against proximity of competitive products is given.
5.7 All programmes are subject to suspension or cancellation or placement at the sole discretion of the Company.
5.8 The Company reserves the right to reject competitive channel advertisements that contain day or time specific or appointment to view references in either a verbal or visual context.
Subject to the provisions of Conditions 11, 12 and 13, any booking may be cancelled by either party provided that notice in writing is received and acknowledged by the Company or the Advertiser/Advertising Agent as the case may be not less than six (6) weeks before the scheduled transmission date. Cancellation or postponement requests for campaigns within six (6) weeks before the scheduled transmission date shall be considered by the Company and may be accepted at the Company's absolute discretion subject to the following cancellation charges:
6-3 weeks 40%
2-1 weeks 60%
< 5 working days 100%
These charges apply to the value of the airtime approved/booked at the time of the cancellation request. Unless a booking is cancelled in accordance with these Conditions, an Advertiser who fails to deliver Advertisement Copy in accordance with Clause 4 will remain liable to pay in full whether or not any advertisement is transmitted. The Company reserves the right to retain all expenditure for any cancelled campaign and to re-book the airtime during a mutually agreed period, a maximum of 6 months.
Any postponement of airtime must be pre-paid within (working) 15 days from the date of cancellation. Airtime must be re-approved within 6 months from the original campaign start date otherwise on the last day of expiry it will be deemed cancelled and at the discretion of the Company charged at 100% cancellation fee.
7. MATERIALS AND PROPERTY LIABILITY
While every reasonable care will be taken in respect of advertising films, recordings, goods or equipment, the Company cannot accept liability for the delay in delivery, loss or damage thereof whether in the studios or in transit and whether or not such films, recordings, goods or equipment are supplied by the Company. Unless otherwise instructed, prints or commercials may be destroyed by the Company if not transmitted for a period of eight (8) weeks without further reference to the Advertising Agent or Advertiser.
8.1 Save for the accounts payable under Clause 8.2, accounts shall be paid no later than ten working days before the scheduled transmission date and in default of payment the Company shall be entitled, without prejudice to its other remedies for breach of contract, to refuse to transmit the Advertisement Copy.
8.2 Accounts payable by an Agency registered by the Agency Registration and Credit Listing committee listed in its Credit List (a ‘credit listed Agency') shall be paid not later than the twenty fifth (25 th) day on the month following the month of transmission (provided that the Agency shall satisfy the Company of such status). In the event of an Agency failing to comply with the provisions of this Condition, the Company reserves the right by notice in writing, after one written notice of due warning, to require any future accounts to be dealt with by such Agency in accordance with Condition 8.1 notwithstanding that the Agency remains a credit listed agency. Payment shall be deemed to have been made in due time if the appropriate remittance is posted by first class post by the 24 th day of the appropriate month. In months where the 25 th falls on a Sunday or a Bank Holiday the next working day shall be regarded as the due date by which the payment must be received by the Company.
In the event of an Advertising Agent or Advertiser not paying an account by the due date, the Company reserves the right without prejudice to all its other rights:
8.2.1 not to accept further bookings from the Advertising Agent or Advertiser;
8.2.2 to treat any amount due to the Company as a simple debt recoverable forthwith;
8.2.3 to charge interest on all monies outstanding beyond the due date for payment at a rate of four per cent (4%) per annum calculated and accrued daily above the base rate of Company's Bank in the UK at that time;
8.3 Accounts are payable on invoice and invoices will normally be rendered at least monthly by the Company, the invoices for the last week of the month being dispatched by first-class post in normal circumstances not later than five (5) working days from the end of the month of transmission.
8.4 The existence of a query on any individual item in an account will only affect the due date of payment of that individual item. The Advertising Agent or Advertiser must notify the Company of any query within two weeks from the receipt of the invoice. No spots may be brought into dispute by the Advertising Agent or Advertiser after this time.
8.5 All payment of accounts for advertising time shall be made in full and it shall not be open to the Advertising Agent or the Advertiser to claim any rights of set off or to make any counterclaim in any proceedings brought by the Company in respect thereof.
9. WARRANTIES AND INDEMNITY
The Advertising Agent or the Advertiser as the case may be represents, warrants and undertakes that:
9.1 it will be responsible for obtaining and paying for all necessary licences and consents for the transmission of any advertising or Copyright material contained or the appearances of any person in his Advertisement Copy;
9.2 no Advertisement Copy will breach the copyright or other rights of or be defamatory of any third party. All Advertisement Copy will be approved, unless deemed unnecessary and prior agreement has been given by the Company that it is not required and will comply with the Codes and Guidelines of OFCOM;
9.3 notwithstanding anything to the contrary contained herein, it will indemnify and keep the Company indemnified on demand against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising for any breach of the above warranties or in any manner whatsoever in consequence of the use, recording or broadcasting in the form submitted or prescribed of any Advertisement Copy or matter supplied by or transmitted for the Advertiser or Advertising Agent.
9.4 it hereby indemnifies the Company against all and any loss, damage, costs, expenses and claims howsoever arising in which breach of intellectual property rights (including without limit copyright) is alleged or proved against the Company in respect of any commercial broadcast to any geographical territories and on any or multiples of terrestrial, satellite or cable TV or over the internet, wherever and however that broadcast may take place
10. PUBLICITY AND INFORMATION CONCERNING ADVERTISEMENTS
No Advertiser or Advertising Agent shall without the prior consent of the Company publish any information in connection with any Advertisement Copy which has been transmitted or is scheduled for transmission with the Company.
11. CHANGE OF RATES AND CONDITIONS
While every endeavour will be made to give four (4) weeks' notice in respect of any changes of rates and terms and conditions, the Company reserves the right to make such changes at shorter notice. In the event of such a change, the rates payable and the terms and conditions applicable shall be those in force at the time of transmission, but the Advertising Agent or Advertiser concerned shall (by serving written notice on the Company within two (2) weeks of receiving notice of such a change) be entitled to cancel any order for an Advertisement Copy to which the change of rates (if increased) or terms and conditions would otherwise be applicable.
12. CHANGE OF TIME SEGMENTS AND CLASSIFICATIONS
While every endeavour will be made to give four (4) weeks' notice in respect of any change of time segments and classifications, the Company reserves the right to make such changes at shorter notice. In the event of such a change, the rate payable shall be at the rate in force at the time of the transmission after taking into account any such change. If these are announced at less than four (4) weeks notice, the Advertising Agent or Advertiser with bookings in the segments affected by such changes shall (by serving written notice on the Company within two (2) weeks of publication of such change) be entitled to cancel any order for an Advertisement Copy to which the changed rates would otherwise be applicable.
13. SPECIAL RATES
Special Rates and conditions may be announced from time to time for particular programmes.
14. ADDITIONAL SPOTS
The Company reserves the right to transmit additional spots at no extra charge in order to achieve advertising objectives.
15. INTELLECTUAL PROPERTY RIGHTS
The Advertiser and/or Advertising Agent hereby grants to the Company a worldwide, non-exclusive, royalty free licence for the Company to broadcast the Advertisement in its entirety (subject to any amendments made to the Advertisement on the basis of clause 4.7 of these Terms and Conditions) on the Channel (including without limit all intellectual property rights in the content, copyright, image rights, trade marks and brand features contained therein) for the purpose of broadcasting the Advertisement on the Channel to any geographical territories and on any of the following media (or any multiples of the following media) terrestrial, satellite or cable TV or over the internet, wherever and however that broadcast may take place, in accordance with the terms of this Agreement.
The Company shall have the right to audit the Advertiser's or Agency's records as the case may be at its own cost at any time on reasonable prior written notice to ensure that payments are being made in accordance with any agreement for advertising airtime based upon the share of the Advertiser or Agency's television advertising expenditure, as the case may be, that it has agreed to commit in purchasing advertising airtime sold by the Company. If any such audit reveals that the Advertiser or the Agency has underpaid the Company by more than 3% of sums properly due, then the Advertiser or the Agency shall pay to the Company forthwith the cost of the audit, together with the amount of the shortfall being revealed which is less than 3% of sums properly due to the Company, the Advertiser or Agency shall forthwith make payment to the Company of the shortfall together with interest as set out above.
- Each party shall keep confidential all confidential information disclosed to it by the other whether relating to these terms and conditions or otherwise. Each party will only disclose confidential information to those of its employees, officers approved sub-contractors and agents who:
- Need to know it for the purpose of exercising or performing its rights and obligations under these terms and conditions.
- Are informed of the confidential nature of the information divulged and;
- Agree to act in compliance with these terms and conditions. Neither party will disclose that information to any third party (other than its employees, officers, approved sub-contractors, professional advisors and agents in accordance with this clause), except for information that:
- is already in the public domain at the time of disclosure;
- becomes publicly known through no fault of its own; or
- is acquired by that party from a third party without any breach of any obligation of confidence
- Notwithstanding any other provision set out here in, it shall not be a breach of this agreement for either party to disclose any information given to it pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with statutory power to require the disclosure of such information, provided that the affected party gives all reasonable notice of such disclosure to the other party.
18. FORCE MAJEURE
If either party (the ‘Affected Party') is prevented or delayed in whole or in part from complying with its obligations under these terms and conditions by reason of Force Majeure, it will notify the other party giving details thereof. The Affected Party will be relieved of its under these terms and conditions to the extent that its performance is hindered or delayed by such Force Majeure event. If the event of Force Majeure continues for a period of more than 6 months, the other party shall be entitled to terminate the affected booking by notice in writing to the Affected Party. This termination will be subject to the Company's charges s set out in clause 6b).
The Advertiser or Agency may not assign, dispose of, hold on trust or part with the benefit or burden of any part of the agreement formed by these terms and conditions without prior written consent of the Company. For the avoidance of doubt, if the Company grants such consent, the Advertiser or Agency shall nonetheless remain responsible for the performance of its obligations under these terms and conditions. The Company shall be free to assign, sub-contract and otherwise deal freely with its obligations under the agreement.
20. GOVERNING LAW
These terms and conditions shall be subject to English law and the exclusive jurisdiction of the English Courts.
Media Icon Ltd
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