STANDARD TERMS AND CONDITIONS OF ADVERTISING
1. Definitions and Interpretation
In this Agreement, the following words and expressions shall have the corresponding meanings:
1.1 “Advertisement” means the advertisement(s) and/or Inserts supplied by You to Us for placing in the Company Publication;
“Agreement” means the Order Communication and these Standard Terms and Conditions of Advertising;
“Campaign Period” means the period during which the Advertisement is to be published in the Company Publication, as set out in the Order Communication;
“Company Publication” means the publication, or the website or social media accounts in relation to any online Advertisement, detailed in the Order Communication;
“Confidential Information” means the existence and/or terms of this Agreement and/or all information disclosed by one party to the other (whether before or after the date of this Agreement) which is marked as, or has been otherwise indicated to be, confidential, which derives value to a party from being confidential or which would be regarded as confidential by a reasonable business person, save to the extent that such information can be proven by the recipient party to this agreement to:
(i) have already been in the public domain at the time of disclosure; or
(ii) have entered the public domain other than by a breach of any obligation of confidentiality;
“Deadline” means the date(s) communicated to You by Us on the Order Communication as the date(s) by which You must provide to Us a) the Advertisement ready to be published or b) (where agreed between the parties) the underlying materials to enable us to prepare and publish such Advertisement on your behalf in the Company Publication;
“Group Company” means any of Our holding companies or subsidiaries and “holding company” and “subsidiary” shall have the meanings given in the Companies Act 2006;
“Insert” means a loose-leaf flyer or bound in flyer for insertion into a Company Publication, or a tip on or covermount;
“IPR” means copyright, moral rights, trade marks, trade names, designs, design rights, patents, domain names, rights to goodwill, rights in confidential information (including knowhow and trade secrets), rights to prevent passing off or unfair competition, and all other intellectual or industrial property rights, in each case whether registered or unregistered, applications for and rights to apply for any of the foregoing and similar or equivalent rights which subsist or will subsist now or in the future in any part of the world, together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;
“Order Communication” means the order confirmation setting out the commercial details relating to the Advertisement, whether provided over the telephone, in person or electronically;
“Price” means the price payable by You for publishing the Advertisement in the Company Publication as stated in the Order Communication;
“Specification” means the technical specification communicated to You by Us which the Advertisement(s) must meet and which We may send to You before or after the Order Communication;
“We”, “Us”, “Our” or “DCT” means D.C. Thomson & Company Limited (Company No: SC005830) whose registered office is at Courier Buildings, Albert Square, Dundee, DD1 9QJ;
“Working Day” means a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business; and
“You” or “Your” means the agency, company, firm or individual placing the order for Advertisement to be published in a Company Publication, as detailed in the Order Communication.
1.2 Any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context requires otherwise) be construed as referring to (i) such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation and (ii) any former legislation which it re-enacts, consolidates or enacts in rewritten form;
1.3 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the meaning of the words preceding them; and
1.4 The clause headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.
2. Application of these Standard Terms and Conditions
2.1 All Advertisements that You request Us to publish in a Company Publication and which are accepted for such placing by Us are accepted subject to the terms of this Standard Terms and Conditions of Advertising and the terms of the Order Communication, which shall apply to the exclusion of all other terms and conditions. By Submitting an order to Us, You confirm that you have read, understood and agree to these Standard Terms and Conditions.
2.2 In the event of any conflict between the terms of the Order Communication and these Standard Terms and Conditions, these Standard Terms and Conditions shall prevail to the extent of any conflict.
2.3 Where We provide You with a range of Advertisements and ancillary services related directly to the Advertisements, both in print, online or otherwise, as part of an integrated campaign, You agree that these Standard Terms and Conditions, or the applicable parts of them, will apply to all such elements of the advertising campaign, even if individual elements of each campaign are not referred to in these Standard Terms and Conditions.
3. Order Process
3.1 You will ensure that all Advertisement(s) or materials (as the case may be) are submitted to Us by the Deadline and are in accordance with the Specification.
3.2 Advertisement(s) which are not Inserts must be submitted to Us in person, by email or telephone to the contact/address for the relevant Company Publication communicated by Us to You from time to time. Where the Advertisement(s) is an Insert, You are responsible for all preparation and printing of the Advertisement(s) and delivering the correct quantities of physical copies of the same (as set out in the Order Communication) to an address notified to You by Us (and all associated costs in relation thereto).
3.3 You shall be fully responsible for proof-reading Your Advertisement(s) for errors prior to submission to Us. This is without prejudice to Your obligation in Clause 8.2 to proof-read Your Advertisement on an on-going basis. We will use reasonable endeavours to provide proof copies of Advertisement(s) to You before the Deadline where requested and where reasonably practicable.
3.4 By placing an order for an Advertisement with Us, You accept and agree to be bound by the terms of this Agreement but each order shall not be binding until We have communicated to You that We have accepted Your order by either placing the Advertisement in the Company Publication or by providing You with an Order Communication.
4. Content of Advertisements
4.1 You warrant and represent to Us that:
(a) You have the right to publish the Advertisement and offer the products and/or services advertised in the same;
(b) the Advertisement and any information supplied in connection with the Advertisement is accurate, complete, true and not misleading;
(c) the Advertisement is not (in Our view and at Our sole discretion) offensive, defamatory, libellous, obscene, immoral or inappropriate;
(d) the Advertisement does not breach any contract with a third party or infringe any IPR or other proprietary right of any third party or otherwise render Us liable to any proceedings, claims, demands, costs or expenses or any other loss whatsoever;
(e) all instructions, artwork or other material submitted to Us by You by electronic means shall not contain software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and shall not be corrupted;
(f) You have obtained the consent of any living person whose name or image (in whole or in part) is contained in any Advertisement;
(g) the Advertisements are legal, decent, honest and truthful and comply with all applicable laws and regulations and industry codes of practice from time to time including the British Code of Advertising, Sales Promotion and Direct Marketing, the Consumer Protection from Unfair Trading Regulations and other consumer protection legislation;
(h) where applicable, the Advertisement will comply with the requirements from time to time of United Kingdom financial services legislation both as to content and authorisation (including the Financial Services and Markets Act 2000 and legislation pertaining to gambling);
(i) the Advertisement will not indicate an intention to discriminate on grounds of sex, race, religion or belief, disability, ethnic origin, age or sexual orientation (unless such Advertisement is exempted from any statutory requirements relating to such forms of discrimination and You notify Us of the applicability of such an exemption at the time when You place an order for Advertisements);
(j) You will be responsible for obtaining and paying for all necessary licences and consents for the publication of any materials contained in any Advertisement;
(k) where You are an advertising agency or a media buyer, You warrant that You are authorised by the advertiser of the product or service to place the Advertisement with Us and are doing so as principal and You will indemnify Us against any claim made by such advertiser against Us; and
(l) the Advertisement will not be detrimental to the image or reputation of DCT, Our Group Companies, Our products and services or the Company Publication.
5. Amendments and Moderation
5.1 Without prejudice to Clauses 3.3 and 8.2, We may make reasonable amendments or edits to any Advertisements created by You including Advertisements submitted through any of our self service facilities, any Advertisements submitted to Us by You over the telephone or any unformatted Advertisements You send to Us.
5.2 Notwithstanding any amendments or moderation which We may conduct on any Advertisements from time to time, it is Your responsibility in accordance with Clauses 3.3 and 8.2 to check Your Advertisement and to notify Us promptly if You have any concerns or queries.
6. Online Advertising (if any)
6.1 If there is any disagreement regarding the number of impressions served in relation to an Advertisement which we publish on a Company Publication which is a website, You agree that the figures provided by DCT will be final and binding.
6.2 DCT cannot guarantee the number of impressions on a webpage containing the Advertisement and has no liability for failure to reach the number of impressions during the Campaign Period that may be set out on the Order Communication, if any.
6.3 In the event that any non-guaranteed total impressions (‘Non GTI’) figure is not reached, despite not being guaranteed we reserve the right to either refund a proportion of the fee, pro rata to the shortfall, or to extend the period the Advertisement is displayed until the Non GTI target is reached. In the event that the Non GTI figure is reached prior to the agreed period the Advertisement will be displayed, We shall give the Advertiser notice thereof and reserves the right to cease publication of the Advertisement.
6.4 Advertising performance reports concerning the Advertisement creatives are generated by Our preferred third party advertising delivery system. The figures in such reports shall be the official definitive measure of the Advertiser’s performance and the billing of costs will be based, where applicable, on these figures. Upon reasonable request, and at the Advertiser’s cost, We shall provide monthly performance reports to the Advertiser.
6.5 If a discrepancy occurs between the number of booked creative types (as set out in the creative information section on the order) and actual delivery by Us, through the under-delivery of advertising due to Our default of its obligations under this agreement, a credit will only be given to the Advertiser when such under-delivery is in excess of 10% (ten percent) of the Advertiser’s total booked creative
6.6 There is no obligation on Us to supply screen shots to the Advertiser and their absence shall not affect the Advertiser’s liability for the agreed charge.
6.7 In respect of Advertisements published from time to time in Company Publications which are websites, DCT does not guarantee continuous uninterrupted access by users of those websites.
7.1 The Price payable to Us for publishing the Advertisement is as stated on, or as part of, the Order Communication exclusive of all applicable taxes and levies (such as the levy payable by advertisers to the Advertising Standards Board of Finance, or such other levy or body that may replace it from time to time) which will be payable in addition by You as necessary. For the avoidance of doubt, if You are an advertising agency or media buyer the Price will be payable by You regardless of the solvency of any advertiser who you act as principal for.
7.2 Unless otherwise specified in writing by Us payments of the Price and any other sums due from You under this Agreement; i) will be made either by major credit card or by bank transfer (in either case in pounds sterling) and ii) must be paid within 30 days of the date on which the invoice is issued with the exception of where We have agreed specific payment terms with You (see Clause 7.7) or the Order Communication specifies that pre-payment is required in which case payment must be made prior to the relevant pre payment date.
7.3 In the absence of any other specific written arrangement between Us and You, We will be entitled to invoice You for the Price from the beginning of the month in which the Advertisement is published in the relevant Company Publication, including in respect of any partial insertion of Inserts.
7.4 We may charge interest on any late payments at the rate of 4% per annum above the base rate of the Bank of Scotland accruing from day to day until the date that payment is made (whether before or after judgment).
7.5 Where, in respect of an order to publish an agreed number of Advertisements in one or more Company Publications, a volume discount has been given by Us to You, You understand and acknowledge that this is subject to such Advertisements being published in the relevant Company Publication(s) within six (6) months (or such longer period set out in the Order Confirmation) of the date of the Order Communication. Where an Order Communication is for a series of Advertisements and You wish to exercise your cancellation rights under Clause 11 in respect of some, or all, of such series then any volume discount given to You for such series of Advertisements shall cease to apply and You shall be liable to pay Us for such series at Our non-discounted Price applicable as at the time of the Order Communication or such other Price which We communicate to You in the Order Communication.
7.6 Any queries relating to the Price of the Advertisements or payments of the same or any other item contained in Our invoices from time to time must be notified to Our account department (details of which shall be set out on the invoice) within 7 days of the invoice. Queries notified to Us after this date will not be accepted and the invoice shall remain payable in full. A query in relation to a specific item on an invoice shall not affect the due date for payment for the undisputed items invoiced.
7.7 We may in Our absolute discretion at any time grant or revoke any credit or vary the limits placed upon any such credit. Credit application forms are available from Us on reasonable demand. You must provide Us with all information We reasonably require to set up a credit account where You have requested this facility and You warrant that such information shall be true, accurate and not misleading. Any special terms relating to Your credit account (including bank guarantees) shall be set out on the Order Communication. Where You wish to set up a credit account with us, You agree that We are entitled to carry out a credit search using a credit referencing agency. This search will be recorded and will be shown on subsequent searches. We will only use the information from these searches to make credit decisions and if necessary for fraud prevention or tracing debtors. Where a credit account has been opened by You with Us then payment of the account shall become due 30 days after Our invoice unless we specify in writing to you otherwise.
7.8 All payments to DCT must be made in full without set-off, deduction, withholding or counterclaim.
8. Liability of DCT
8.1 DCT accepts no responsibility for any interruption or delay You experience in delivering any Advertisement to DCT or any loss or damage to any Advertisement or any other materials or any failure to publish any Advertisement in whole or in part, save as expressly set out in this Agreement.
8.2 DCT shall not be liable for any errors or repetition of errors in Advertisements (notwithstanding any approval DCT has given to the Advertisement) and it is Your responsibility to check and proof the Advertisements on an on-going basis and immediately inform DCT of any errors and provide Us with such assistance as We may require in order to avoid such errors or repetition.
8.3 As set out in Clauses 3.3 and 8.2, it is Your responsibility to check the Advertisement for errors. If the Advertisement as reproduced by DCT contains a substantial error solely due to a mistake on DCT’s part, DCT may, at its discretion either (i) refund a reasonable amount of the Price paid by You for the placement of the Advertisement or adjust the Price payable by You (as appropriate); or (ii) re-publish the Advertisement in the Company Publication at a different date at no additional cost to You (other than Your obligation to pay the Price). No re-publication or refund or adjustment to the Price will be made where the error does not (in Our sole opinion and discretion) materially detract from the Advertisement.
8.4 If a booked Advertisement is not published or inserted in the relevant Company Publication at all solely due to a mistake on DCT’s part, DCT will use reasonable endeavours to offer an alternative publication date(s) for the Advertisement. If the alternative date(s) is not accepted by You, the original booking will be cancelled and You shall be entitled to a full refund if You have paid in advance for the Advertisement. This shall be Your sole remedy for Our failure to publish the advertisement.
8.5 If You deliver a quantity of Inserts which are more than or less than the quantity set out in the Order Communication:
(a) We will be entitled to reject the excess Inserts delivered and at Your risk and expense such excess will, at our option, be i) returnable to You or ii) and/or disposed of by Us; and/or
(b) If We accept delivery of a quantity of Inserts which is more or less than the quantity set out in the Order Communication the sum invoiced by Us will be adjusted on a pro rata basis to take account of the over or under delivery.
8.6 Occasionally, DCT cannot distribute the number of Inserts agreed with You on a specific day due to changes in the print run. Where this happens, DCT will distribute all such non-distributed Inserts at the next appropriate and available opportunity or You and We will act reasonably and in good faith to agree an appropriate remedy for such Inserts which were not inserted in to the Company Publication in accordance with this Agreement. In no event will DCT be liable for loss arising from failure to insert or any errors in the insertion of Inserts.
8.7 DCT shall use its reasonable endeavours to reproduce Advertisements as provided by You but cannot guarantee that the Advertisement will be of the same quality.
8.8 DCT will not be responsible for any additions to, changes in, deletions from, delays in publication or withdrawal of any Advertisements required by any authority having responsibility for the regulation of advertising.
8.9 DCT will use reasonable endeavours to comply with Your wishes in relation to the time, dates and/or position of Advertisements in the Company Publication which must be communicated by You to Us before the Order Communication is given to You.
8.10 You acknowledge that DCT’s digital facilities are maintained by DCT’s hosting service providers from time to time and whilst DCT shall use its reasonable endeavours to ensure the continuity of those facilities, DCT will not be liable for any delay or failure to provide online Advertisements caused by such providers or other reasons beyond DCT’s reasonable control including (for the avoidance of doubt) any Force Majeure Event (as defined in Clause 8.15).
8.11 Any material submitted by You is held by DCT at Your risk and should be insured by You against loss or damage due to any cause. DCT reserves the right to destroy without notice all such property after the date of its last scheduled appearance in a Company Publication unless You have given reasonable prior instructions to the contrary at the time of the Order Communication. You warrant and represent that You have retained sufficient quantities and qualities of any copy or other materials relating to the Advertisement as required by You so that DCT shall not be liable for any loss or damage to any such items submitted to Us.
8.12 DCT shall not be responsible, under any circumstances, for any: loss of profit, loss of opportunity, loss of goodwill, loss of anticipated saving, or loss of revenue (in each case whether direct or indirect or consequential) and/or any other indirect, consequential or special loss.
8.13 DCT’s maximum total liability for any loss or damage arising out of or in relation to any Advertisement whether in contract, tort (including negligence) or otherwise shall not exceed the total Price for the relevant Advertisement actually paid by You or on Your behalf.
8.14 For the avoidance of doubt, nothing in this Agreement will limit or exclude DCT’s responsibility for death or personal injury resulting from its own negligence, fraud or any other liability that cannot be excluded or limited as a matter of law.
8.15 DCT shall not be responsible for any failure to publish, or delay in publishing, an Advertisement or any error in the same or other breach of this Agreement which is caused by any reason beyond its reasonable control including: war, armed conflict, terrorist attack, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, the breaking off of relevant diplomatic relations, strikes, lock-outs or other industrial disputes, accident, explosion, breakdown of plant or machinery, failure of transport links, failure of telecoms links, unavailability of the internet or any utility, failure of subcontractors, earthquake, fire, flood, storm or extreme adverse weather conditions, epidemic or pandemic, nuclear, chemical or biological contamination and acts of God (a “Force Majeure Event”).
8.16 If a Force Majeure Event which gives rise to relief from liability under Clause 8.15 continues for a period of more than 2 weeks, We will be entitled to terminate this Agreement immediately by giving 1 weeks’ written notice to that effect to You.
9.1 As between the parties, DCT owns all IPR in all Company Publications and any other materials written or designed by it or on its behalf.
9.2 You grant DCT the right (free of charge) to:
(a) use such of Your names, trade marks and/or logos as DCT may consider necessary for the purposes of publishing the Advertisements in the Company Publications; and
(b) reproduce, publish and distribute all Advertisements, or any part thereof, and to make them available in the Company Publications.
10. Cancellation and Termination
10.1 You may cancel any request to publish an Advertisement in a Company Publication without liability to pay the Price provided You notify Us of Your wish to cancel in writing at least 28 Working Days before the Deadline or such later “free cancellation” date set out in the Order Confirmation. Should You withdraw the Advertisement in a Company Publication less than 28 Working Days before the Deadline or after the “free cancellation” date (as applicable), You shall be liable for the Price and We will use reasonable endeavours to withdraw that Advertisement from the Company Publication.
10.2 If You are insolvent or bankrupt or otherwise in breach of the Agreement, We may treat Your order as cancelled without any further liability to You.
10.3 We may, without any liability to You, reject, cancel or require any Advertisement to be amended that We consider to be unsuitable or contrary to, or in breach of, this Agreement and remove, not print, suspend or change the position of any such Advertisement. We may refuse to publish any Advertisement if You have not paid any sums which have become due for any Advertisement in any of the Company Publications. You will remain responsible for all outstanding charges.
10.4 Should We exercise the option under Clause 10.3 above that an Advertisement be amended, You shall, at Our discretion, be given one (1) opportunity to re-submit the Advertisement(s) in order for it to comply with this Agreement, provided that such re-submission occurs prior to the relevant Deadline.
10.5 We may cancel the placement of Your Advertisement in the Company Publication due to Our or any Group Company being no longer able to accommodate the said Advertisement(s) in the relevant Company Publication or for any other reason other than those set out in Clauses 10.2 and 10.3. If We cancel your Advertisement in accordance with this Clause 10.5 We shall reimburse to You the Price for such Advertisements or We will inform you that the Price will not be payable by You (as applicable). This is Your sole remedy for any failure by Us to include Your Advertisement in the Company Publication for reasons other than those in Clauses 10.2 and 10.3.
11.1 You hereby agree to indemnify, keep indemnified and hold harmless DCT and each Group Company from and against any and all liability, damages, losses, claims or costs, including legal costs suffered by DCT and any Group Company whether directly or indirectly arising out of or in connection with any negligent act or omission by You, or any breach by You of this Agreement (including breach of any warranty) or out of any claim by a third party based on any fact, which if substantiated, would constitute such a breach.
12.1 This Agreement is personal to You and may not be assigned or transferred in whole or in part without DCT’s prior written consent. DCT may freely assign or transfer or sub-contract this Agreement in whole or in part without Your consent provided that where an Order Communication refers to a specific Company Publication, DCT may not assign its right to publish the Advertisement so that it is published in a different Company Publication to that specified in the Order Communication.
12.2 We reserve the right to disclose Your name and address to the police, trading standards officials, or any other relevant authority which We deem appropriate and to Our sub-contractors for the purpose of them performing this Agreement.
12.3 If We fail or delay in exercising our rights or remedies provided by this Agreement, We shall not be deemed to have waived that or any other right or remedy under this Agreement.
12.4 You shall keep confidential all Confidential Information. You may disclose Confidential Information to Your professional advisers but otherwise will only disclose Confidential Information to those of Your employees, officers, sub-contractors and agents who (i) need to know it strictly for the purpose of exercising or performing Your rights and obligations under this Agreement; (ii) have been informed of the confidential nature of the Confidential Information divulged; and (iii) agree to act in compliance with the confidentiality requirements of this Agreement. You will not disclose Confidential Information to any third party except as otherwise permitted in this Agreement. Notwithstanding any other provision of this Agreement, it shall not be a breach of this Agreement for You to disclose any Confidential Information 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 power to require the disclosure of such information, provided that (to the extent You are permitted to do so) You give all reasonable notice of such disclosure to Us.
12.5 All notices to be given under this Agreement will be in writing and may be given to or left at (but not, in either case, by post) the relevant party’s address, by recorded delivery, post or by e-mail to the addresses in the Order Communication or as otherwise notified by the parties in writing.
12.6 This Agreement and any documents referred to herein constitute the entire agreement between the parties and supersede all prior agreements. Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Agreement and which is expressly set out in the Agreement will be for breach of contract. Nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud.
12.7 We reserve the right to modify these Standard Terms and Conditions of Advertising from time to time and any amendments shall apply from the time they are published online (but shall not apply to any Advertisements placed before such communication). You should review the then current Standard Terms and Conditions before placing an order because by placing an order You are agreeing to the then current terms.
12.8 Other than any Group Company stated to benefit from any rights herein, no third party (including any advertiser where an agency has submitted an order on behalf of an advertiser) shall have any rights to enforce the Agreement, but We reserve the right to provide information on the Advertisement to the relevant advertisers on request. The parties may vary or rescind the Agreement without the consent of any Group Company.
12.9 This Agreement, and any non-contractual obligations arising out of or in connection with it, shall be governed by Scots law and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.