YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
Radio Experts Limited
Terms and Conditions of Business for Advertising, Media Buying, and Creative Services
These Terms and Conditions of Business (“Agreement”) set forth the terms and conditions governing the provision of advertising, media buying, and creative services (“Services”) by Radio Experts Limited (“Company”) to the client (“Client”). By engaging Company’s Services, the Client agrees to be bound by these terms and conditions.
The following words and phrases used in this Agreement have the following meanings, and the singular shall include the plural.
“Advert/Advertisement/Creative Materials” means a Radio Advertisement, Radio sponsorship and/or promotion, Digital Audio, Digital Advertisement, and/or Audio-Visual Advertisement which collectively form the Campaign;
“Advertiser” means the Client.
“Campaign” means the content of the campaign which we have agreed to book on your behalf during the Term on the Media Platform(s) as set out in the Media Schedule (or otherwise agreed between us) including all and any advertising and promotional material, trailers, live reads, taglines, straplines, creative or other content in any format relating to any (i) Advertising; (ii) Sponsorship and/or (iii) Promotion;
“Campaign Under-delivery” means the situation whereby the Media Platform does not broadcast as many impressions or impacts of the advert as purchased by you.
“The Client” means the party identified as such in the Order form, or otherwise any advertiser/agency booking a Campaign;
“The Company” means Radio Experts ltd, company number 06041615, of Henwood House, Henwood, Ashford, TN24 8DH;
“Data Controller” means the person, corporate body, unincorporated association, partnership or other body which alone or jointly with others, determines the purposes and means of the processing of Personal Data;
“Data Privacy Laws” means applicable laws relating to the processing of Personal Data including the Data Protection Act 2018 (DPA), Privacy and Electronic Communications Regulations 2003 (PECR) (as amended) and the European General Data Protection Regulation 2016 (GDPR);
“Data Processor” means the person, corporate body, unincorporated association, partnership, or other body which processes Personal Data on behalf of the Data Controller
“Fee” means the sum payable by you to us for delivery of the Campaign as may be set out in the Media Plan or as otherwise agreed between the parties;
“Impacts/Impressions” – means the number of times the advertisement is broadcast on a Media Platform;
“Intellectual Property Rights (IPR)” means any patents, trademarks, copyright, moral rights, performance rights, goodwill, confidential information, database rights, trade secrets and all or any other intellectual or industrial property rights, both registered and unregistered anywhere in the world, including any renewals and extensions and including any such rights discovered or invented after the date of this Agreement;
“Laydowns” means the agreed broadcast schedule or number of spots;
“Media Plan” means the media schedule, and/or any other document(s) or agreements entered into between the parties in respect of the Campaign, which shall include the commercial terms and delivery schedule;
“Media Platform” means all and any of the radio station(s), website(s), mobile or other platforms on which the Campaign is being broadcast, transmitted or served as set out in the Media Plan or as otherwise agreed between the parties;
“our”, “us” and “we” means Radio Experts ltd, company number 06041615, of Henwood House, Henwood, Ashford, TN24 8DH; also referred to as “The Company”.
“Purpose” means the usage parameters of the relevant audio, including all or any of the licencing term(s), specific station(s), audio platform(s), or usage limits.
“Radiocentre” means the industry body for commercial radio, responsible for ensuring advertising messages comply with the necessary content rules and standards laid out in the BCAP Code of Broadcast Advertising and the Ofcom Broadcasting Code.
“Sign-Off” and ‘’Order-Confirmation’’ means the written or electronic sales order or confirmation document provided by The Company to The Client confirming details of The Campaign, or written email confirmation provided by The Client to The Company confirming details of The Campaign.
“you” and “your” means The Client (as applicable and being jointly and severally liable for all obligations contained herein) including any successors in title, assigns and Group Companies.
2.1
This Agreement commences on the earlier of: (i) the date The Client signs the Order Confirmation; (ii) the date The Client confirms by their action or written communication (which may be via email) their acceptance of the Order Confirmation; (iii) The Client supplies us a purchase order number for the campaign along with written confirmation of acceptance of the media plan. This Agreement shall continue until the final Advertisement in the Campaign has been broadcast. However, all terms which are expressly stated or are, by their nature, clearly intended to continue, shall continue beyond expiry or earlier termination of the Term.
3.1
These conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
3.2
Unless otherwise stated, The Company supply of service is from within the UK.
3.3
The Company agrees to provide advertising, media buying, and creative services as agreed upon in the proposal or contract. The Company offers no warranties and makes no representations regarding the outcome of the Campaign.
3.4
The Company shall use all reasonable endeavours to meet any performance dates that may be specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.5
The Company warrants to The Client that the Services will be provided using reasonable care and skill.
3.6
We shall book the Campaign in accordance with the agreed Media Plan. In addition, if detailed in the Sign Off, we shall develop and create the Advertisements for the Campaign.
3.7
You agree that you will pay the Fee and we will provide the Campaign on the terms of the Agreement. By signing the Campaign Sign-Off and/or booking a Campaign with us you agree to be bound by the Agreement. The booking and broadcast, transmission and/or serving of all Campaigns is subject to our approval and availability on the Media Platforms.
3.8
The parties shall cooperate in good faith to ensure The Campaign is developed and delivered in accordance with the specifications and deadlines set out in the Order Confirmation
3.9
Any changes or additions to the Services must be agreed upon in writing by both parties.
4.1
The Client shall provide all necessary information, materials, and approvals required by the Company to perform the Services.
4.2
Where required for the Company to perform the Services, the Client grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Company for the term of the Contract for the purpose of providing the Services to the Client.
4.2
The Client shall ensure that all information provided to the Company is accurate and does not infringe upon any third-party rights. The Client shall fully indemnify the Company against all claims for breach of clause 11.1.2.
4.3
The Client shall make prompt payments for the Services in accordance with the payment terms set forth in this Agreement.
4.4
Where the Company requires your approval over content the Company has created for the Campaign, any delay by you in giving your approval may cause the Campaign to be delayed. We will not be held liable for any cost, loss or inconvenience caused by the slow approval of Campaign materials by You.
4.5
Your Campaign must comply with the following:
4.5.1
All relevant legislation relating to the Campaign, including the Communications Act 2003, and to the product or service which is the subject of the Campaign;
4.5.2
Any relevant regulations or codes of practice (whether voluntary or obligatory) including the Ofcom Broadcasting Code, the UK Code of Broadcast Advertising (BCAP Code) and the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code);
4.6
If you are supplying audio for the Campaign, we will require from you, prior to broadcast:
4.6.1
Radiocentre clearance (number). Clearance must be within 6 months prior to the start of the Campaign, even for repeat Campaigns running the same script;
4.6.2
Details of any clearance conditions imposed by the Radiocentre, including scheduling, scripting, or production requirements.
4.6.3
PRS (Performing Rights Society) details if any music is present in the advert, details needed include Title, Composer & Publisher.
4.6.4
Copy Rotation Details if relevant.
4.7
If we provide Radiocentre clearance for any scripts written or audio produced by a third-party we shall not be liable for any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business or any pure economic loss; or any special, indirect or consequential loss, costs, damages, charges or expenses resultant from any upheld complaint relating to the cleared script in question.
4.8
Radiocentre clearance does not guarantee that an Advert is compliant with the law or Ofcom regulations, or that the Advertising Standards Authority (ASA) will not uphold a complaint against it.
5.1
The Client shall pay the Company for the Services rendered as per the agreed-upon pricing and payment schedule. All amounts payable by the Client under the Agreement 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 Agreement by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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.
5.2
Payment shall be made in the currency specified in the Sign off or Order form.
5.3
If we have approved you as a credit customer, we will invoice you for the Fee monthly in arrears at the end of each calendar month during the Campaign unless otherwise agreed in writing, calculated according to the proportion of the Campaign broadcast during that month, unless otherwise discussed and confirmed in writing. The exception to this is creative production, where we will invoice you for the Fee at the end of the month in which the production was started and/or completed.
5.4
We reserve the right to withdraw at any time any credit arrangement extended to you, in which case the outstanding Fee for the entire Campaign will become due immediately.
5.5
If we have not approved you as a credit customer, we will issue a proforma invoice, either for the entire Campaign on the date of the Agreement or monthly in advance calculated according to the proportion of the Campaign due to be broadcast that month, at our discretion. A proforma will be issued for creative production if applicable prior to commencement of work. Cleared funds are required 5 working days before the start of the Campaign.
5.6
In the event of late payment, the Company reserves the right to charge you interest at a rate of 8% per annum above the Bank of England’s base lending rate on any amount not paid by the due date for payment. Interest is calculated on a daily basis and accrues from the due date for payment until receipt by us of the full amount (including any accrued interest) whether before or after judgment. The parties acknowledge and agree that the interest payment set out in this clause is, in the context of the activities contemplated under this Agreement, a “substantial remedy” (as this expression is used in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time)).
5.7
All costs incurred in the recovery of any unpaid amounts, including legal fees, shall be borne by the Client.
5.8
You shall make payment in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever by the invoice due date.
5.9
The existence of a query on any item in an invoice shall not affect the due date of payment of the balance of the invoice. Any amount queried and withheld by you will be subject to the full rate of interest in clause 5.6, unless resolved in your favour.
6.1
Where the Media Plan specifies the level of on-air Impacts (which are measured on Rajar data for adults 15+ audience as at the date of this Agreement) or online Impressions (which are measured on total served impressions) likely to be achieved because of the Campaign, such impacts are guaranteed to a variance of +5/-5%.
6.2
We will bear no responsibility for any Campaign Under-delivery, but we will endeavour to use reasonable efforts to have any lost Impacts and Impressions delivered at the earliest available date.
6.3
We will endeavour to achieve requested and/or planned Laydowns as per the Media Plan subject to radio programming features, broadcast times and availability constraints. We will not reimburse the Advertiser for the number of spots missed according to the Laydown.
6.4
Where any part of The Campaign is missed or is set live late due to any reason caused by you the Company will not be held liable for any loss of impacts or impressions.
6.5
Where you use third party advertising tags to deliver an online advert, there may be a discrepancy between the delivery statistics provided to us by the Media Platforms and those of the third party. We shall bear no liability for any discrepancies.
7.1
Neither party shall acquire any rights or interests in the other party’s IPR because of this Agreement.
7.2
Except to the extent that the Client has provided content for the Campaign, the Company retains all intellectual property rights, including copyright, in any creative materials developed for the Client by The Company.
7.3
Upon full payment for the Services, the Company grants the Client a non-exclusive, non-transferable license to use the Creative Materials solely for the Campaign purpose agreed upon. The audio associated with this order must not be used on any other audio or visual platform without prior written permission.
7.4
The Client shall not modify, reproduce, or distribute the creative materials without the Company’s prior written consent.
7.5
The Campaign materials we produce under this Agreement are to be used in relation to the Campaign only and you shall not be entitled to use, or permit a third party to use, the materials independently of the Campaign unless otherwise agreed in writing between you and the Company.
7.6
The Client shall not distribute any media plans we produce for the Campaign without the Company’s prior written consent.
7.7
Any advertisement created by us may be used in any way to promote us on radioexperts.co.uk and/or audioexperts.co.uk and/or all and any websites owned and maintained by the Company or its subsidiaries, any of our social media channels, internal and external meetings and presentations and trade press for our own benefit without written notice from the Client.
7.8
Simulating the voices contained within the Creative Materials, to create a likeness or to create any synthesized or “digital double” voice is strictly prohibited.
8.1
Both parties agree to keep confidential any proprietary or confidential information disclosed during the course of providing or receiving the Services.
8.2
This confidentiality obligation shall survive the termination or expiration of this Agreement.
9.1
The Company shall not be liable for any indirect, consequential, or incidental damages arising out of or in connection with the provision of the Services.
9.2
The Company shall not under any circumstances be liable for (i) loss of profits or anticipated profits, loss of anticipated savings, damage to reputation or goodwill, loss of use or corruption of software, data or information, loss of business or anticipated business or any pure economic loss; or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses;
9.3
The total liability of the Company, whether in contract, tort, or otherwise, shall be limited to the amount paid by the Client for the Services under this Agreement.
9.4
Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
9.4.1
Death or personal injury caused by negligence;
9.4.2
Fraud or fraudulent misrepresentation
10.1
Each Data Controller and or Data Processor shall comply with Data Privacy Laws when processing Personal Data in in the performance of its obligations under this Agreement.
10.2
When processing Personal Data, each Data Controller or Data Processor shall put in place appropriate technical, physical and organisational measures against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, unauthorised disclosure of or access to Personal Data;
10.3
When processing Personal Data, a Data Processor shall:
10.3.1
Ensure that it does not disclose any Personal Data to any third party without the prior written consent of the Data Controller; and
10.3.2
Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.3.3
Not cause or permit any Personal Data to be transferred outside the European Economic Area without the prior written consent of the Data Controller.
11.1
You warrant, represent, and undertake to us that:
11.1.1
You have the full right, power, and authority to enter into the Agreement;
11.1.2
You own or have obtained and paid for and will maintain all necessary licences, and consents, rights and waivers required for the broadcast of any material protected by any IPR or other rights contained in any materials provided by you for the Campaign;
11.1.3
Any materials provided by you will not (i) infringe the IPR of, be defamatory of or otherwise infringe any rights of any third party or give rise to a claim for passing off or (ii) be inaccurate, misleading, obscene, or offensive or (iii) in any way contravene any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) from time to time;
11.1.4
The Campaign is legal, decent, honest and true;
11.1.5
Any claims made in the Campaign are accurate and fair and can, if required, be substantiated by documentary evidence.
11.2
You will fully indemnify us and hold us harmless against any, and all actions, proceedings, losses, costs (including legal and other professional fees), damages, fines, expenses, penalties, claims, demands, liabilities, and damages (including any direct, indirect, or consequential losses and any loss of profit, goodwill or reputation) arising from any breach of clause 11.1.
12.1
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
12.2
Any disputes arising out of, or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.
13.1
Our standard cancellation period for both creative and media services are thirty (30) days’ notice. If you wish to terminate the agreement in accordance with this clause, we require notice in writing no less than thirty days prior to the Campaign start date.
13.2
You will pay to us all our Campaign fees and any other fees (including fees incurred to any third party) we have incurred on your behalf where the Cancellation date is less than 30 days of the start of the Campaign.
13.3
We reserve the right to charge You for any whole or part of activity placed with media owners or Company’s whom operate with differing cancellation terms or for any other reason.
13.4
Without prejudice to other rights and remedies, either party may terminate this Agreement immediately by notice in writing to the other party if the other party:
13.4.1
Is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 14 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it;
13.4.2
Ceases, or threatens to cease, to carry on business;
13.4.3
Becomes or is declared insolvent or convenes a meeting of, or makes or proposes to make any arrangement or composition with its creditors;
13.4.4
Has a liquidator, receiver, administrator, administrative receiver, manager, trustee, or similar officer appointed over any of its assets.
14.1
We shall have no liability to you if we are prevented, hindered or delayed in carrying out any of our obligations under this Agreement by any act or thing beyond our control or any other act or event that affects or may affect the campaign(s) (including any law or regulatory order, power failure, breakdown or failure of software or machinery, interruption of broadcast, unforeseen technical failure, accident, act of God, storm, fire or flood, death of royalty or other public figure, terrorist action or war, failure of sub-contractors, Company’s or labour dispute) (a “Force Majeure Event”).
15.1
This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and supersedes all prior agreements, understandings, or representations, whether oral or written.
By engaging the Services of the Company, the Client acknowledges that they have read, understood, and agreed to be bound by these Terms and Conditions.
