SPONSORSHIP PACKAGE ORDERS ARE
ACCEPTED SUBJECT TO THE FOLLOWING
TERMS & CONDITIONS
A. The Advertiser wishes to display Advertisements on the Website of GBAF Publications Limited (“GBAF”). These terms and conditions together with the Sponsorship Package are legally binding and constitute the agreement between the Advertiser and GBAF relating to the display of such Advertisements.
B. The Advertiser’s confirmation (whether oral or in writing) to GBAF of the Sponsorship Package constitutes the Advertiser’s acceptance of these terms and conditions and the Sponsorship Package. These terms and conditions and the Sponsorship Package may only be amended to the extent agreed in writing by GBAF. In the event of any conflict between these terms and conditions, on the one hand, and the Sponsorship Package, on the other, the Sponsorship Package will prevail.
1.1. In these Terms and Conditions and the Sponsorship Package unless the context otherwise requires:
'Advertisement' means the electronic advertisement(s), series of electronic advertisement(s), link(s) or promotion(s) of the type(s) specified in the Sponsorship Package and relating to the product(s) or service(s) and the Campaign(s) specified in the Sponsorship Package;
'Advertiser' means the party described as such in the Sponsorship Package;
'Agreement' means the Sponsorship Package and these Terms and Conditions;
'AOP' means the UK Association of Online Publishers;
'Applicable Laws' includes all applicable Legislation, rules of common law, ASA adjudications, bulletins, codes (including self regulatory codes), guidance notes, guidance, rules, regulations, requirements, rulings, restrictions, standards, directions and license obligations (including any of the same issued by any Competent Authority and the British Codes of Advertising, Sales Promotion and Direct Marketing and other codes of practice written by the Committee of Advertising Practice and enforced by the ASA) in each case as amended, varied or replaced from time to time;
'ASA' means the Advertising Standards Authority;
'BACS' means Bankers Automated Clearing Service;
'Booking' means the Advertiser's confirmation (whether in writing, by fax or email, oral or by any other means) of an Sponsorship Package;
'Campaign' means the campaign specified in the Sponsorship Package;
'CHAPS' means Clearing House Automated Payments System;
'Cookies Regulations' means The Privacy and Communications (EC Directive) Amendment Regulations;
'Competent Authority' includes any national or supra-national court, the European Commission, any governmental or local authority, any other person exercising powers pursuant to any Legislation, any other equivalent, similar or other official person (including Ofcom, the ASA and BCAP) and any relevant self regulatory body or industry body (including the AOP and the IAB);
'Copy Instructions' means any specific instructions provided by the Advertiser to GBAF in relation to a Campaign;
'Data Protection Rules' means all laws and regulations relating to the protection of personal data and e-privacy including the principles of the Data Protection Act 1998 and the Privacy and Communications (EC Directive) Amendment Regulations 2011;
'GBAF' means GBAF Publications Limited of Kemp House, 152-160 City Road, London EC1V 2NX, England;
'IAB' means the UK Internet Advertising Bureau;
'Launch Date' means the intended date of first display of the Advertisement under this Agreement on the Website being the first date of the Campaign as confirmed in the Sponsorship Package;
'Legislation' includes all laws, Acts of Parliament, all provisions of the Treaties constituting the European Community, the European Union and the European Economic Area, all Data Protection Rules and all orders, regulations, directives, conventions and subordinate legislation made pursuant to such an Act or Treaty or otherwise having the force of law;
'Loss' means all losses, claims, liabilities, costs, expenses and damages;
'Page impression' means a file or a combination of files sent to a User as a result of that User's request being received by the Website's server;
'Payment Date' has the meaning given in clause 8.1;
'Sponsorship Package' means GBAF’s advertising, insertion or purchase order sent by GBAF’s to the Advertiser in respect of the display of the Advertisement on the Website;
'Term' means the period commencing on the date of receipt by GBAF of the Advertiser’s confirmation referred to in Recital B above and ends on the discharge of both parties' obligations under the Sponsorship Package;
'Third Party Cookies' means a cookie or other similar technology placed on a user's browser or hard drive via the Website in order to track the individual's particular interests and to assist in serving targeted advertising;
'Undertaking' has the meaning given in section 259 of the Companies Act 1985 and 'parent undertaking' and 'subsidiary undertaking' have the meanings given in sections 258 and 259 of the Companies Act 1985;
'User' means a person who accesses, or who otherwise is a user of, the Website;
'Viruses' means any computer code, programming instruction or set of instructions that is intentionally and specifically constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files or hardware;
'Website' means the website owned by or in the control of the GBAF on which the Advertisement is to be displayed in accordance with these terms and conditions and the Sponsorship Package;
'Working Day' means a day, except a Saturday or Sunday, which is not a public or bank holiday in England.
2. Acceptance, Delivery and Display of Advertisements
2.1. Any Advertisement for display on the Website will only be displayed if it is approved by GBAF in its absolute discretion, satisfies its technical requirements from time to time, and complies with Applicable Laws.
2.2. It is the responsibility of the Advertiser to procure that all Advertisements satisfy GBAF’s technical requirements and comply with Applicable Laws and reflect the spirit, not just the letter, of all Applicable Laws.
2.3. GBAF reserves the right to involve a third party in the approval of Advertisements and may require that all Advertisements are submitted to such third party for approval prior to delivery to GBAF for display and that the Advertisements comply with the requirements or guidelines of such third party.
2.4. GBAF has the right, in its absolute discretion, to decline to display, omit, suspend, reject or cancel any Sponsorship Package or Advertisement or remove any Advertisement from the Website for any reason whatsoever. In the event GBAF exercises its discretion and removes an Advertisement, the Advertiser be entitled to a pro rata refund of any charges it has paid but GBAF shall not have any liability to the Advertiser in respect of any Loss arising out of, or in connection with, such removal.
2.5. Advertisements must be delivered to GBAF together with all materials required for the display of the Advertisements on the Website (in accordance with any instructions, technical requirements or other specifications which GBAF may require from time to time) not less than ten (10) Working Days before the Launch Date. Delivery of Advertisements to GBAF will not be deemed to have taken place unless and until the requirements of this Agreement have been complied with.
2.6. GBAF will use its reasonable endeavours to adhere to but will not be liable for any failure to comply with Copy Instructions.
2.7. The Advertiser may change an Advertisement during the Term of this Agreement, subject always to GBAF’s approval of the revised Advertisement such approval not to be unreasonably withheld or delayed.
3. Cookies Regulations
3.1. The parties acknowledge that the Cookie Regulations are relevant to Third Party Cookies. The Cookie Regulations impose an obligation on those setting cookies to:
3.1.1. provide clear and comprehensive information about Third Party Cookies;
3.1.2. obtain the User's informed, freely given and unambiguous consent to the planting of the cookie; and
3.1.3. Provide information to Users about how they can disable Third Party Cookies.
3.2. The parties acknowledge that all organisations who form part of the online advertising sales value chain must co-operate to ensure compliance with the Cookie Regulations.
3.3. The Advertiser shall publish information about the Cookies included within an Advertisement together with confirmation of how they can be disabled.
4. Page Impressions
4.1. The Advertiser acknowledges that GBAF gives no guarantee as to the number of page impressions on the Website or the number of persons who will view the Advertisement.
4.2. GBAF shall use all reasonable endeavours during the Term to provide Campaign reports to the Advertiser showing actual delivery against Campaign targets at such intervals as the Advertiser and GBAF may mutually agree.
5.1. GBAF will use its reasonable endeavours to display the Advertisement during the Term but the Advertiser acknowledges and agrees that no commitment is given by GBAF that the Advertisement will be displayed on specific dates. The Advertiser also acknowledges and agrees that GBAF may change the dates, times or any other aspects of the display of the Advertisement as it sees fit in order to deal with any change in Applicable Laws or any other change in circumstances. GBAF will not be held responsible in any way for the content, nature or subject matter of any other advertising displayed on the Website and the effect or otherwise that any of the same may have on the effectiveness or otherwise of the Advertisement displayed by GBAF on the Website on behalf of the Advertiser.
5.2. If the display of the Advertisement does not take place at all, or such display only takes place in part, in each case through no fault of the Advertiser, GBAF will endeavour to agree with the Advertiser alternative display dates of reasonably equivalent value. Save as provided in this clause 5.2, GBAF will have no liability for any Loss arising out of or in connection with any failure to display the Advertisement in whole or in part at any date or time or at all.
5.3. If the Advertisement is displayed incorrectly through no fault of the Advertiser this shall not constitute a breach of this Agreement but without prejudice to this, GBAF and the Advertiser will use their reasonable endeavours to agree how to compensate the Advertiser.
6.1. In the event that the Advertiser wishes to cancel the Sponsorship Package prior to the Launch Date, the Advertiser shall remain liable to:
6.1.1. reimburse GBAF any and all third party costs incurred by GBAF in respect of such Sponsorship Package and;
6.1.2. Pay GBAF the total fee set out in the Sponsorship Package.
6.2. Notwithstanding the foregoing GBAF may in its absolute discretion accept cancellation of a Sponsorship Package (which for the avoidance of doubt GBAF is not obliged to do) if such cancellation is received by GBAF in writing prior to the production stage of the Sponsorship Package by GBAF. If such a cancellation is (in GBAF’s absolute discretion) accepted by GBAF then and in such event a cancellation fee equivalent to fifty percent (50%) of the full price of the Sponsorship Package will become due and payable by the Advertiser to GBAF within seven (7) working days immediately following the date of GBAF’s written acceptance of cancellation time being of the essence for payment of such cancellation fee.
6.3. For the avoidance of doubt if any cancellation fee agreed by GBAF is not paid within the aforementioned time period then without prejudice to any of the rights of GBAF hereunder GBAF shall be entitled to be paid the total fee set out in the Sponsorship Package.
7. Materials and Property Liability
7.1. Reasonable care will be taken by GBAF of any materials or content provided by or on behalf of the Advertiser to GBAF whilst in the possession of GBAF, but subject thereto, GBAF will not accept liability for any Loss arising out of or in connection with any damage, loss, deletion or otherwise of the same and GBAF will be under no obligation to return any of the same to the Advertiser or any other third party.
7.2. The Advertiser will be responsible for ensuring that all materials and content provided by it are insured for full value and GBAF will have no obligation to put in place any insurance policy in respect of the same.
7.3. At the end of the Term, GBAF may destroy or delete any materials or content provided to GBAF by or on behalf of the Advertiser without further reference to the Advertiser.
8.1. All payments here under shall be paid by the Advertiser to GBAF prior to or immediately upon the commencement of the Campaign (the “Payment Date”).
8.2. Any charges not paid by the Payment Date will be subject to an interest charge at the rate of four percent (4%) per annum above the base rate of GBAF’s bankers and shall accrue daily.
8.3. For the purposes of clause 8.1 payment will be deemed to have been made prior to or on the Payment Date if GBAF has received a cheque (which is subsequently cleared for payment) for the full amount or written confirmation that the Advertiser has sent the full amount by BACS or CHAPS, in each case prior to 12.30p.m. on the Payment Date (provided that where the Payment Date falls on a Sunday or a bank or public holiday then the next Working Day will be regarded as the Payment Date for the receipt of the cheque or written confirmation).
8.4. Invoices will be rendered in advance of the commencement of the Campaign. Failure by GBAF to render or dispatch invoices at the times referred to above or at all will not affect the obligation of the Advertiser to make payment as required in accordance with these terms and conditions.
8.5. All payments to GBAF shall be made in Pounds Sterling or such other currency as may be mutually acceptable to the Advertiser and GBAF.
8.6. All payments to GBAF must be paid in full without set off, counterclaim or deduction of any withholding tax.
8.7. All payments to GBAF are exclusive of Value Added Tax (“VAT”) which shall additionally be paid to GBAF on receipt of valid VAT invoices.
9. Warranties and Indemnity
9.1. The Advertiser warrants, undertakes and represents to GBAF that:
9.1.1. all Advertisements will comply with Applicable Laws and GBAF's technical requirements in each case from time to time in force;
9.1.2. no Advertisement or the display thereof will infringe the rights of any third party;
9.1.3. the Advertisements shall be free from any Viruses;
9.1.4. All consents, licences and fees required in relation to the display of any Advertisement have been obtained and paid;
9.1.5. no hypertext link used in any Advertisement will cause GBAF to incur any liability and the Advertiser shall promptly notify GBAF of any changes which affect the functioning of the link and all necessary steps will be taken to correct any malfunction of such link;
9.1.6. no hypertext link from any Advertisement will affect a User's ability to click on the back button on the User’s browser back to the Website;
9.2. The Advertiser undertakes with GBAF that it will indemnify and keep GBAF indemnified both during and after the Term against any Loss arising out of or in connection with any breach of this clause 9 or otherwise howsoever arising out of or in connection with the display of any Advertisement supplied to GBAF. The Advertiser warrants that it has taken out appropriate insurance cover to satisfy the indemnity given.
10.1. Except as required for the proper performance of its obligations or exercise of its rights under this Agreement or by law or the requirements of any Competent Authority, no party will during or after the Term disclose or make any announcement concerning any aspect of this Agreement or the Sponsorship Package and each party will use its best endeavours both during and after the Term to keep the existence of this Agreement and its terms and those of the Sponsorship Package confidential.
10.2. The Advertiser will not include in any Advertisement any information not already in the public domain.
11.1. The Advertiser agrees with GBAF that the maximum liability of GBAF in respect of any Loss to the Advertiser arising out of or in connection with this Agreement will not exceed the amount paid by the Advertiser (less applicable VAT) to GBAF in respect of the display of the relevant Advertisement.
11.2. Nothing in this Agreement will exclude or restrict any liability for death or personal injury caused by the negligence of a party or for fraud.
11.3. To the fullest extent permitted by law, all warranties, conditions, terms and other provisions, express or implied and whether imposed by statute or otherwise are hereby excluded.
12. Duration and Termination
12.1. This Agreement will continue until the expiration of the Term unless terminated earlier in accordance with the provisions of this clause, but no such termination will affect any provision of this Agreement expressed to have effect after such termination or any rights which either party may have against the other subsisting at or accrued prior to the time of termination.
12.2. In the event of any termination of this Agreement for any reason prior to the expiry of the Term GBAF reserves the right to levy cancellation charges in accordance with clause 6.
12.3. Either party may terminate this Agreement forthwith by notice to the other party:
12.3.1. if the other party commits a material breach of any of its obligations under this Agreement and (if the breach is capable of remedy) fails to remedy it within five (5) Working Days after being given notice requiring it so to do.
12.3.2. if the other party goes into liquidation whether compulsory or voluntary (except for the purposes of a bona fide reconstruction or amalgamation pursuant to which the company resulting there from agrees to be bound by or assume the obligations of that party) or has an administrator administrative receiver, receiver or manager appointed over any part of its assets or undertaking or otherwise becomes insolvent or suffers any similar event in any jurisdiction. In any such event this Agreement will be deemed to have terminated immediately prior to occurrence of such event.
13.1. The headings in this Agreement are for convenience only and will not affect its interpretation.
13.2. This Agreement is personal to the Advertiser and the Advertiser may not assign or sub-license any of its rights hereunder or sub-contract or otherwise delegate any of its obligations hereunder, except with the prior written consent of GBAF.
13.3. Nothing in this Agreement will create, or be deemed to create, a partnership, or the relationship of principal and agent, between the parties.
13.4. This Agreement confirms the entire agreement between the parties with respect to its subject matter and supersedes all previous statements made by either party and all previous agreements in relation thereto.
13.5. If any provision of this Agreement is held by any court or other Competent Authority to be void, invalid or unenforceable in whole or in part, this Agreement will continue to be valid as to its other provisions and the remainder of the affected provisions; and the parties agree to negotiate in good faith such suitable alternative provision replicating as nearly as possible the intention of such invalid provision, being in the case of a provision held void or unenforceable by a Competent Authority a provision which is acceptable to the relevant Competent Authority. The Advertiser agrees that nothing in this Agreement shall oblige GBAF or any of its Undertakings to contravene any Applicable Law and the obligations of GBAF under this Agreement are subject to compliance with Applicable Laws.
13.6. No failure or delay by any party in exercising any of its rights under this Agreement will be deemed to be a waiver of those rights and no waiver of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
13.7. This Agreement will not be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties to this Agreement.
14.1. Any notice or other communication to be given or served under or in connection with this Agreement shall be in writing and may be delivered by hand, sent by ordinary first class mail (or by airmail in the case of notices to or from any country outside the United Kingdom) or by special delivery or recorded delivery post (in each case, pre-paid) to the party's address as appears herein or to such subsequent address as may be notified to a party by the other party in accordance with the notice provisions contained herein.
14.2. A notice shall be deemed duly given or served if delivered by hand at the time it is left at the address as evidenced by a written receipt; if sent by pre-paid post (whether ordinary first class, airmail, special delivery or recorded delivery) on the second Working Day after posting; and if sent by fax or email at the time of receipt as evidenced by a fax or email transmission report.
14.3. In the case of a notice given by hand, where this occurs after 5.00 pm on a Working Day, or on a day which is not a Working Day, the date of service will be deemed to be the next Working Day.
15. Governing Law and Jurisdiction
This Agreement and the Sponsorship Package shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English Courts.