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In these terms and conditions (unless the context otherwise requires) the following expressions shall have the following meanings: (a) "The Company" means Radio Works Ltd. (b) "The Advertiser" means the person, firm or company contracting for the services of the Company. © "Agreement" shall mean the form of engagement between the Company and the Advertiser together with these terms and conditions.
(a) On signing the Agreement the Advertiser agrees to be bound by these terms and conditions. Subject to clause 16, the Agreement can only be modified by a written instrument signed by both parties. (b) In the event of any conflict between the Agreement and these terms and conditions, these terms and conditions shall prevail. © These terms and conditions shall continue to apply as between the Advertiser and the Company where the Company is instructed by the Advertiser to carry out further services for the Advertiser and no new Agreement is completed and/or signed by the Advertiser.
(a) Placement of Advertising All placement of advertising with radio stations shall be subject to the commission and other charges set out in the Agreement. (b) Production and Research All production and research costs will be charged to the Advertiser at the cost set out in the Agreement. © Out of Pocket Expenses. The Advertiser agrees to reimburse to the Company any normal out of pocket expenses incurred by the Company in the production of the advertisement. These expenses include, but shall not be limited to, transportation and travel by the Company personnel on behalf of the Advertiser, telephone calls and faxes, messenger and freight services fees. (d) Fee The Company's fee will be as per the Agreement.
(a) Invoices are due for payment not later than fifteen days from the date of invoice. (b) The Company may charge interest on overdue accounts at the rate of five per cent (5%) per annum above base rate issued by the National Westminster Bank until settlement is received. 5 VAT Where applicable VAT will be added to the charges invoiced under these terms and conditions.
The Advertiser warrants and undertakes that: (a) The facts given about its products or services shall be accurate and in no way misleading. (b) The Advertiser is the legal and beneficial owner of all contributions made by the Advertiser to the advertisement and/or has obtained all the necessary licenses, release or consents and the use of any such contributions shall not infringe the copyright or any other rights of any person, firm or company. © The Company shall not be required to include in the advertisement any matter which is an infringement of copyright of any other third party or is defamatory or is obscene or will expose the Company to criminal or civil proceedings. (d) The Company shall be fully indemnified by the Advertiser from and against all actions, proceedings, claims, demands and costs (including legal costs of the Company and a solicitor and own client basis) awards and damages arising out of any breach by the Advertiser of its warranties hereunder.
(a) In the performance of this Agreement the Company shall observe the British Code of Advertising Practice, the ITC Code of Advertising Standards and Practice for Radio and Television, the Radio Authority's Code and other codes of advertising standards laid down voluntarily within the advertising industry to ensure that all the advertising prepared by the Company is legal, decent and truthfulPROVIDED ALWAYS that nothing in this clause shall render the Company liable to the Advertiser in respect of the breach of any such code. (b) The Advertiser shall inform the Company without delay if the Advertiser considers any claim or trade description in any advertisement, publicity or promotional material submitted by the Company to the Advertiser is false, or misleading or in any manner likely to be actionable at law in relation to the product or services which is the subject of the advertising.
(a) The Company hereby acknowledges its responsibility during the period of the Agreement to treat in complete confidence all marketing and sales information and statistics which may be supplied by the Advertiser to the Company in the course of the Agreement. (b) The Advertiser acknowledges and agrees that any identifiable and original idea, or concept presented by the Company in relation to any promotion or advertising campaign invented or developed by the Company is available only for such promotion or campaign and shall not be used for any other purpose whatsoever without the Company's express prior agreement given in writing whether or not a promotion or campaign is agreed, the ideas and concepts presented to the Advertiser shall remain strictly confidential and the property of the Company and shall not be used in any way, including communication to any third party, without the Company's prior consent.
Subject to the provisions of clause 16, any booking may be cancelled by either side, provided that notice in writing is received by the Company or the Advertiser, as the case may be, not less than 28 days before the scheduled broadcast date.
(a)The Company shall not be liable to the Advertiser under any circumstances in respect of any claim for any loss of profits or other indirect consequences, whether arising from negligence, breach of contract or howsoever. (b) The Company shall not be liable for any delay in, or omission of transmission or any error in any advertisement or publicity or promotional material prepared by the Company in the absence of any act, default or negligence on the part of the Company which may have caused the same. © If the Advertiser should cancel an advertisement or a number of advertisements giving insufficient notice to avoid liability to the radio station or stations, as set out in clause 9, the Advertiser shall be liable to indemnify the Company against all costs incurred.
(a) Subject to 10(b) the entire copyright, intellectual property right, moral right and all other rights, title and interest in and to the product or the services of the Company made under this Agreement shall vest and be the absolute property of the Company throughout the world for the full period of copyright and the extensions or renewals. (b) The Company's rights pursuant to 10(a) above shall be subject to any rights of any nature (including but not limited to copyright and moral rights) in and to any of the product or the services which shall vest in and/or may be retained by the Advertiser or any third party rendering or making goods, materials, services or rights in connection with or otherwise engaged in or contributing in any way to the production of such work. © It is the Advertiser's responsibility to ensure that: (i) all material supplied by the Advertiser to be incorporated in any advertisement does not infringe the copyright or any other rights of any third party, and (ii) where the copyright is not owned by the Advertiser a licence to use the relevant material has been obtained and (iii) all necessary consents and releases in relation to such material have been obtained.
In the event that the Agreement cannot be performed or its obligation fulfilled for any reason beyond the reasonable control of either party including war, industrial action, floods, act of God then such non-performance or failure to fulfil its obligations shall be deemed not to be a breach of the Agreement. In the event that the Agreement cannot be performed or its obligations fulfilled for any reason beyond either party's reasonable control for a continuous period of three months then either party may, at its discretion, terminate the Agreement by notice in writing at the end of that period.
The Company shall be entitled by 14 days written notice to the Advertiser to determinate or suspend the Agreement if the Company shall have been prevented from performing the services by injury, mental or physical disability or otherwise and the Advertiser shall have no claim against the Company whatsoever in respect of any such suspension or determination.
Notices under these terms and conditions may be sent by first class post to the address of the other party and shall be deemed to have been served within 48 hours after posting, subject to proof of posting.
If any provision of these terms and conditions shall be prohibited by or adjudged by a Court to be unlawful or unenforceable such provision shall to the extent required be severed from these terms and conditions and rendered ineffective as far as possible without modifying the remaining provisions of these terms and conditions and shall not in any way affect any other circumstances of the validity or enforcement of these terms and conditions.
The Company reserves the right to change any of these terms & conditions by not less than 28 days notice, and in the event of such a change the terms & conditions applicable shall be those in force at the time of broadcast, but the Advertiser shall by serving written notice on the Company within 10 days of receiving notice of such change, be entitled to cancel any order for an Advertisement to which the changed terms & conditions would otherwise apply.
No failure or delay on the part of any of the parties to the Agreement shall constitute a waiver of the right to exercise any right, power, privilege or remedy under these terms and conditions.
The Agreement shall not be deemed to constitute a partnership, or joint venture or contract of employment between the parties.
These terms and conditions shall be governed by and construed in accordance with the Law of England and Wales the Courts of which shall be competent jurisdiction. Nothing herein shall be taken to imply that any further service shall be required to be performed by the Company hereafter.
1 Obligations of the Advertiser
1.1 The Advertiser shall not:
1.1.1 submit to the Company any Order that it knows or should (after reasonable enquiry) have discovered, infringes or might reasonably be considered to infringe the Intellectual Property Rights of any third party;
1.1.2 use the Company Server or any of the Services in any way that might reasonably be considered to infringe the rights of any third party, including but not limited to trademark infringement, copyright infringement, passing off and defamation.
1.1.3 reverse engineer, de-code or in any way disassemble any software provided by the Company in relation to the provision of the Services;
1.1.4 use the Company Server or any of the Services to send, relay, upload, post or receive replies to any unsolicited or unauthorised e-mail messages, mobile phone sms text messaging or any other form of messaging, promotional materials, junk mail, spam, chain letters or other form of solicitation;
1.1.5 use the Company Server or any of the Services to communicate, reproduce, transmit, store or knowingly receive any material that is offensive, abusive, indecent, defamatory, obscene, menacing or in breach of confidence or that breaks any of the rules, codes of practice or guidelines of any regulatory industry body including but not limited to ICSTIS, IMCB, MDA, MMA, ASA or other rules and regulations as laid down from time to time by the Mobile Operators or any other legislation or applicable laws.
1.1.6 advertise a Company mobile domain name or any product or service offered by or through a Company mobile domain name hosted by the Company using unsolicited or unauthorised means including junk mail, spam, sms text messaging, chain letters or any other form of solicitation; or
1.1.7 enter any incorrect or incomplete name, business name, address, email address, telephone number or any other false information on the Order Form or otherwise enter information intended to conceal the Advertiser's identity. The Advertiser further acknowledges that it is its responsibility to notify the Company of any changes to its details and to ensure that those details provided are kept up to date.
1.2 In the event of any breach of the provisions of clause 1.1 by the Advertiser, the Company reserves the right forthwith to withdraw, suspend or cancel the Services.
1.3 The Advertiser acknowledges that it is solely responsible for maintaining adequate insurance cover in respect of any loss or damage relating to the provision of the Services.
1.4 The Advertiser acknowledges that the Internet is not a completely secure medium of communication, and, whilst the Company has taken steps to safeguard the security of some information (i.e using Secure Sockets Layer "SSL" technology which encrypts the information the Advertiser inputs on its system before it is transmitted to the Company) the Advertiser inputs on the Website or sends to the Company on the internet, the Company is not and will not be responsible for any damages the Advertiser may suffer as a result of the loss of confidentiality of such information.
1.5 The Advertiser warrants, represents and undertakes that it will obtain all necessary licenses and consents in respect of its Company mobile domain names and any material transmitted or stored using the Services prior to posting such material;
1.6 The Advertiser warrants, represents and undertakes that any Company mobile domain names, any material transmitted or stored using the Services and any material linked to or referred to by way of the Services is not offensive, abusive, indecent, defamatory, obscene, menacing, in breach of confidence, and/or does not infringe the Intellectual Property Rights of any third party or contain a virus or other hostile code or constitute or encourage a criminal offence;
1.7 The Advertiser warrants, represents and undertakes that it will not nor will it permit or authorise any other party to use the Company Services in breach of any law or regulation;
1.8 The Advertiser warrants, represents and undertakes that it will not nor will it permit or authorise any other party to use the Company Services in any way which is or may be detrimental to the Company;
1.9 The Advertiser warrants, represents and undertakes to abide by any limitations imposed by the Company and to keep secure any confidential information provided by the Company including any passwords.
1.10 The Company reserves the right to grant or deny any Keyword or Service from being used. Although the Company
will not unreasonably deny the Keyword or Service without good reason.
2 Obligations of the Company
2.1 In the event that the Advertiser submits any Order or uses any or all of the Services in such a way as may in the Company's opinion expose the Company to the risk of legal or other proceedings or expose the Company to loss or damage of any kind, the Company reserves the right to refuse to process or continue processing any Order or to withdraw, suspend or cancel the Services or take any other action as it in its absolute discretion it sees fit.
The Advertiser shall indemnify the Company and Radio Prep and keep the Company and Radio Prep fully indemnified from and against all liability, claims, costs, losses, loss of profits, expenses, business interruption, and other pecuniary or consequential loss (including reasonable legal costs and expenses) suffered or incurred by the Company as a result of:-
(i) access to and/or use of the Services by the Advertiser;
(ii) any information, data or material produced, transmitted or downloaded by the Advertiser;
(iii) any breach by the Advertiser of any of the provisions of these Conditions or of any law, code or regulation relating thereto or to the internet.
(iv) any registration or attempted registration of a Company mobile domain name that infringes Intellectual Property Rights or which causes a claim that Intellectual Property Rights have been infringed;
(v) any material delivered or displayed when a Company mobile domain name is used that infringes Intellectual Property Rights or which causes a claim that Intellectual Property Rights have been infringed;
4 Limitation of Liability
4.1 The Company warrants to the Advertiser that the Services will be provided using reasonable care and skill.
4.2 Whilst the Company makes no attempt in the Agreement to limit its liability for death or personal injury arising from its negligence, in no circumstances shall the Company be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof for:
4.2.1 The consequences of any usage of the Services by an Advertiser or the Advertiser's advertisers that break or are suspected of breaking any ICSTIS, MDA, IMCB codes of practice or other regulations, codes of practice, legislation or applicable laws or other rules and regulations as laid down from time to time by the Mobile Operators.
4.3 the Company may from time to time offer help and advice to the Advertiser relating to ICSTIS, MDA, IMCB guidelines or other regulatory bodies or other rules and regulations as laid down from time to time by the Mobile Operators. This advice is offered in good faith based on the Company's current knowledge and must not be used without seeking final clarification and guidance from the relevant body. The Company may not be held responsible for any misguidance or incorrect information. It is always the Advertiser's responsibility to ensure that all Services that they plan to use and use together with all promotion and advertisement of such Services must comply fully with all industry codes of conduct and all applicable laws in the jurisdictions in which they are run.
4.4 The Advertiser shall fully comply with the applicable guidance, recommendations, regulations, sanctions and codes of practice issued by ICSTIS ("Independent Committee for the Supervision of Standards of Telephone Content Services"), MDA (The Mobile Data Association) and IMCB (The Independent Mobile Content Body) from time to time throughout the duration of this Agreement. ICSTISinformation, guidelines and codes of practice may be found at the public website http://www.icstis.org.uk. MDA information, guidelines and codes of practise may be found at the public website http://www.mda-mobiledata.org. IMCB information, guidelines and codes of practise may be found at the public website http://www.imcb.org.uk. The Advertiser shall also comply with all other prevailing regulations, codes of practice, legislation and applicable laws and other rules and regulations as laid down from time to time by the Mobile Operators. The Advertiser shall incorporate into any Agreements with any third party in connection with the provision of the Services provisions imposing substantially the same obligations on that third party as are imposed by ICSTIS, MDA, IMCB, other regulatory bodies and the Mobile Operators. ICSTIS, MDA, IMCB regulations and codes of practice that the Advertiser must comply with include (but are not limited to) ensuring that the Advertisers marketing and advertising always informs the Advertiser's advertisers clearly and precisely how much any premium rate sms text services will cost to use.
4.5 In the event that the Company receives from ICSTIS, MDA, IMCB or other regulatory bodies or law enforcement agencies or the Mobile Operators written notice of a breach of the ICSTIS,MDA, IMCB code of practice or other regulations, codes of practice, legislation or applicable laws regarding a Service offered, the Company shall be entitled to take all necessary action to comply with any and all sanctions imposed on the Company or its upstream partners and aggregators by ICSTIS, MDA, IMCB, other regulatory bodies, law enforcement agencies or Mobile Operators in writing including (but not limited to) passing on any imposed fines to the Advertiser. Under this Agreement the Advertiser agrees to pay in full any such fines and to take full responsibility under any applicable law, regulation, code of practice or other such legislation for such breaches or wrong doing. In the event that the Company receives from ICSTIS, MDA, IMCB, other regulatory bodies, law enforcement agencies or Mobile Operators written notice of a breach of the code of practice or applicable law regarding a Service offered by the Advertiser, it will be considered a breach of this Agreement which allows the Company to terminate this Agreement with immediate effect and with no further notice. In the event that the Company suspects a breach of the ICSTIS, MDA, IMCBcode of practice or other regulations, codes of practice, legislation, applicable laws or rules and regulations of the Mobile Operators regarding a Service offered by the Advertiser, the Company shall be entitled to suspend or terminate this Agreement and/or the Services. the Company will give reasonable notice of suspension or termination if the notice period will not in any way further harm the Company or its other Advertisers or put the Company or its other Advertisers in an increased position of risk or exposure to further breaking of anyICSTIS, MDA, IMCB codes of practice or other regulations, codes of practice, legislation or applicable laws. If this Agreement is terminated for any reason then the Advertiser will still remain liable to pay any such fines imposed on the Company by ICSTIS, MDA, IMCB or other regulatory bodies.
4.6 In the event that the Company becomes the subject of an investigation by ICSTIS, MDA, IMCB, other regulatory bodies, the Mobile Operators or law enforcement agencies regarding a service offered by the Advertiser, the Advertiser agrees to comply with all requests made in writing for information to help ICSTIS, MDA, IMCB, other regulatory bodies, the Mobile Operators or law enforcement agencies carry out the investigation. Failure by the Advertiser to reasonably assist the Company under this clause will be considered a breach of this Agreement which allows the Company to terminate this Agreement with immediate effect and with no further notice.
4.7 Unless offered in an Addendum to this Agreement, shortcodes are only available for these mobile network operators in the UK and Northern Ireland: O2, Orange, Vodafone, Virgin, 3UK & T Mobile. They will not work for inbound or outbound sms text messaging to any other network.
4.8 The Company reserve the right to remove and de-register the Company mobile domain names from Advertisers if any part of this Agreement is breached by the Advertiser or upon termination of this Agreement for whatever reason. If any part of this Agreement is breached by the Advertiser, the Company reserves the right to withhold any monies owed to the Advertiser including but not limited to Premium Rate SMS commissions.
4.9 The Advertiser will not use any Service, including but not limited to an the Company mobile domain name, bulk sms and premium rate sms for any Adult or Gambling related service without the prior written permission of an Radio Prep Director by way of an Addendum to this Agreement. Any such Adult or Gambling related use of the Services must at all times abide by all ICSTIS, MDA, IMCB codes of practice and other regulations, codes of practice, legislation and applicable laws and the rules and regulations of the Mobile Operators. If the Company suspects the Advertiser to be putting Adult or Gambling related material in the way of minors or if the Company suspects the Advertiser to be breaking any ICSTIS, MDA, IMCB codes of practice or other regulations, codes of practice, legislation or applicable laws or the rules and regulations of the Mobile Operators then the Company may at its discretion suspend or terminate this Agreement and/or the Services. the Company will give reasonable notice of suspension or termination if the notice period will not in any way further harm the Company or its other Advertisers or put the Company or its other Advertisers in an increased position of risk or exposure to further breaking of anyICSTIS, MDA, IMCB codes of practice or other regulations, codes of practice, legislation or applicable laws or the rules and regulations of the Mobile Operators.
4.10 If the Company incurs any charges per inbound sms text message sent into a standard MSISDN mobile number (but not including texts sent into a shortcode) then the Company reserves the right to pass these charges on to the Advertiser who will be liable to pay them immediately. This clause may survive the term of this Agreement.