CAPITAL BUSINESS MEDIA LTD (CBM)
STANDARD TERMS AND CONDITIONS
These Terms set out the terms on which the Advertiser books Advertising Space (defined below) with CBM. Please read these Terms carefully as they contain important information.
- Definitions and Interpretation
1.1 In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings. Less frequently used terms are defined within the body of these Terms:
“Advertisement” means any advertising copy and other materials supplied or entered by You or on Your behalf in any format in the form intended for publication by CBM, including all advertisements, supplements, inserts and ad banners;
“Advertiser“, “You“, “Your(s)” means the person, firm or company named in the Booking, including a company wishing to advertise its products and/or services (“Client“) and agencies engaged by the Client to select and purchase Advertising Space on its behalf (“Agency“), including their successors in title and assigns;
“Advertising Space” means advertising space in a Directory or Publication or on a Website;
“Booking” means a booking for Advertising Space made by You to CBM by submitting a Booking Request and confirmed by CBM by providing you with a Confirmation (as defined in clause 2.3);
“Booking Request” means an application for Advertising Space made by You to CBM in accordance with clause 2.2;
“Code” means any user name, password or other identifier provided by CBM to You to submit Advertisements directly on to a Website;
“CopyDeadline” means the date and time by which the Advertisement must be submitted to CBM as stated by CBM;
“Directory” means a printed directory, guide, handbook or other publication issued annually by CBM;
“Fee” means the total sum payable by You to CBM as specified in the Booking based on CBM’s current advertising rates published in the rate card from time to time in force, which may be obtained from CBM;
“Publication” means a magazine or any other printed publication not being a Directory issued by CBM;
“PublicationDate” means the date on which the Publication or Directory is made available for general circulation or when the Advertisement is made available to users on the Website;
“CBM” means the entity identified in the Booking, which will be one of Capital Business Media Ltd registered in England no. 05306700 or Capital Business Media Inc registered in the State of New York U.S.A. at registered address 1120 Broadway New York, NY 10010
(or their successors or assigns) as the case may be;
“Terms” means these terms and conditions;
“VAT” means value added tax chargeable under English law or such other applicable sales or other taxes;
“Website” means a website owned or managed by CBM.
1.2 In these Terms, unless the context clearly indicates another intention:
(a) headings are included for convenience only and a reference to any gender includes other genders and the singular includes the plural and vice versa;
(b) references to persons include individuals, unincorporated bodies, government entities, companies and corporations; and
(c) the words “include”, “including”, and “such as” are to be construed as if they were immediately followed by the words “without limitation”.
- Basis of Contract
2.1 By making a Booking Request, You agree to be bound by these Terms to the exclusion of all other terms. If You do not agree to be bound by these Terms, CBM will be unable to accept Your Booking Request.
2.2 Your Booking Request shall be made by You by telephone, letter, facsimile, e-mail, through the internet or in such other form as CBM may in its discretion accept.
2.3 Your Booking Request is an offer to CBM to book Advertising Space and a binding contract between You and CBM will only be formed when written confirmation of acceptance is sent by CBM to You (whether or not it is received) using the contact details provided in the Booking Request (“Confirmation“). You should contact CBM if You have not received Confirmation within two (2) working days of Your Booking Request. CBM reserves the right in its sole discretion to refuse to accept Your Booking Request. Your Booking Request and the Confirmation together (also referred to as the Booking) shall constitute a binding contract between You and CBM which shall be subject to these Terms. Please note that in the case of a conflict, the Booking shall take precedence over Booking Request and these Terms.
2.4 The person submitting the Booking on Your behalf shall be deemed to have full authority to do so and You shall have no right to claim against CBM that such person or persons did not have such authority.
2.5 In no circumstance does the placing of any Booking convey the right to renew on similar terms.
2.6 Where You are an Agency, You represent, warrant and undertake that You have full authority to act on behalf of, and to bind, You and the Client and You and the Client will be jointly and severally liable for Your liabilities under these Terms.
- Submission and Publication of Advertisement
3.1 You shall deliver the Advertisement to arrive at CBM by the Copy Deadline, in any format that conforms to CBM’s requirements as notified to You by CBM. CBM reserves the right to charge for production work and any other additional work that CBM may be required to undertake. CBM may in exceptional cases and at its own discretion accept Bookings and Advertisements after the Copy Deadline. Such acceptance shall not impose any obligation whatsoever on CBM to accept any other Booking or Advertisement after the Copy Deadline.
3.2 In the event of any Advertisement not being received by the Copy Deadline, CBM reserves the right to repeat the copy last used. In such event CBM shall not be responsible for making any changes in that copy, unless these are confirmed in writing and in time for the changes to be made. CBM reserves the right to charge for any additional expense involved in such changes.
3.3 You undertake to keep any Code strictly confidential and to notify CBM immediately in the event that any Code becomes known to a third party.
3.4 You are solely responsible for any liability arising out of publication of the Advertisement including an Advertisement submitted using Code without CBM’s knowledge or control or relating to any material to which Website users can link though the Advertisement.
3.5 CBM shall be entitled to (or require You to) amend, edit, withdraw, take down or otherwise deal with any Advertisement at its absolute discretion and without giving prior notice. Should withdrawal or suspension be due to Your act or default or Your agents including the unsuitability of the Advertisement, then You shall pay for the Advertising Space reserved for the Advertisement in full notwithstanding that the Advertisement has not appeared.
3.6 Except as otherwise specifically agCBM in writing by CBM, the positioning and placement of Advertisements in the Advertising Space shall be treated as requests only and cannot be guaranteed.
3.7 CBM reserves the right to increase the advertisement rates as notified by CBM to You and amend any terms agreed between the parties as to the Publication Date or any other amendment to the Advertisement.
3.8 Your property, originals, artwork, type, mechanicals, digital files and proofs, positives etc. are held by CBM at the owner’s risk and should be insured by You against loss or damage from whatever cause. After the final Publication Date of the Advertisement, You shall be responsible for collecting all such materials which You require from CBM’s premises, failing which, CBM reserves the right to destroy all material that has been in its (or its printers) custody for one year. CBM may exercise its right under this clause without giving further notice to You.
3.9 It is Your sole responsibility to clear the Advertisement, including obtaining all necessary consents, licences and releases and ensuring that the Advertisement in compliance with all applicable laws. You represent and warrant to CBM that the Advertisement submitted by You to CBM for publication and any link (including any linked website) is legal, truthful, honest and decent and otherwise complies with the relevant advertising and marketing standards, rules, regulations, codes of practice, legislation and all other applicable laws.
3.10 You represent and warrant that:
(a) You are the sole author and legal and beneficial owner of the Advertisement;
(b) You hold the necessary rights, consents and licences required to use, amend, edit, adapt and publish the Advertisement by CBM for the purpose of these Terms; and
(c) the use, reproduction, publication, distribution or transmission of the Advertisement, including any exercise of the licence under clause 3.12 by CBM will not violate any applicable laws or any rights of any third parties, including, infringement of any copyright, patent, trade mark, trade secret, or other proprietary right, false advertising, unfair competition, defamation, obscenity, piracy, invasion of privacy or rights of celebrity, infringement of any discrimination law, securities law or regulation, or of any other right of any person or entity.
3.11 You warrant that any Advertisement in relation to any investment or financial promotion (as defined under the Financial Services and Markets Act 2000) has been approved by an authorised person within the meaning of the Act or the Advertisement is otherwise permitted under the Act, the Financial Promotion Order 2001 or any other legislation subordinate to the Act or such local equivalent in the relevant jurisdiction in which the Advertisement is published.
3.12 You hereby grant to CBM a worldwide, non-exclusive royalty-free right and licence to use, reproduce, publish, store, distribute and display the Advertisement (including all contents, trade marks and brand features contained therein) in accordance with these Terms. No other rights in the Advertisement are granted to CBM and no rights in the Advertisement shall be assigned to CBM under these Terms.
3.13 You shall defend, indemnify and hold CBM harmless from and against all costs, claims, demands, proceedings, liability, losses and expenses (including reasonable legal fees) whatsoever made against or incurred by CBM as a result of, related to or arising in connection with (i) a breach of these Terms by You, and/or (ii) any acts or defaults of You, Your employees or agents in connection with these Terms and/or (iii) any claim brought against CBM that the Advertisement supplied by You infringes, violates, or trespasses or constitutes the unauthorized use or misappropriation of any intellectual property of any third party.
3.14 CBM will not guarantee a minimum impressions level for any Advertisement on any specific pages of the Websites.
3.15 To the full extent permitted by law, CBM will not be liable for any loss or damage, whether direct or indirect, including consequential loss or any loss of profits or similar loss, in contract or tort or otherwise, relating to the Advertisement or any errors or omissions in the Advertisement or lack of access to or availability of a Website, systems or technological failures or failure of the Advertisement to appear in the Advertising Space from any cause whatsoever or any other failure which is beyond the control of CBM. CBM will not be liable for any errors or omissions in the published Advertisement nor its failure to appear at a specified time or in any specific position. If CBM is liable to You for any reason, CBM’s total liability whether under these Terms or otherwise in relation to the Advertising Space is limited to the amount of the Fee received by CBM.
3.16 Nothing in these Terms shall exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party or its employees while acting in the course of their employment.
3.17 You acknowledge and allow that data submitted by You in connection with a Booking may be used for the purposes of updating Your details on CBM’s databases and of compiling statistical information on You.
4.1 The Fee shall be payable by You to CBM in full and in cleared funds into CBM’s nominated bank account within thirty (30) days of the date of CBM’s invoice.
4.2 The Fee is stated exclusive of VAT, which will be due at the prescribed rate as at the date of the invoice.
4.3 In the event of late payment, CBM reserves the right to waive any agreed discounts.
4.4 At CBM’s discretion, payments may be subject to a deduction for advertising agency commission at the rate agreed between the Client and the Agency. Save for such commission there shall be no deductions or withholdings whatsoever. All sums shall be paid together with any VAT or other sales tax applicable.
4.5 Debt recovery costs and interest on overdue invoices shall accrue on any unpaid amounts from the date when payment becomes due to the maximum extent permitted by The Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debt Regulations 2002 as amended, extended, consolidated or replaced from time to time or other similar laws that may be applicable.
5.1 CBM may (at its sole discretion) change the date, suspend or cancel a Booking at any time for any reason without incurring any liability to You.
5.2 Except as set out in clause 5.5, if You wish to cancel a Booking You shall notify CBM in writing and You will be required to pay CBM the Fee in full for the cancelled Booking where notice of cancellation is received by CBM:
(a) for a Directory, less than two months;
(b) for any other Advertisement in a Publication, less than six weeks;
(c) for a Website, less than one month
before the Publication Date.
5.3 CBM shall be under no obligation to reimburse all or part of such charges, even in the event that CBM resells the cancelled Advertising Space after such cancellation by You.
5.4 Except as set out in clause 5.5, if You terminate, cancel or fail to fulfil Your obligations under a contract in which You and CBM have agreed a time period in which You shall book an agreed number of Bookings at rates notified by CBM, You lose the right to a series discount to which You may have been entitled. In such event, You shall pay to CBM in respect of each Booking, such sum representing the difference between the rate agreed under the said contract and the rate that is applicable for the number of advertisements actually placed for such Booking, such rate to be notified by CBM to You.
5.5 If you cancel Your Booking as a result of a change made by CBM pursuant to clause 3.5, You will not incur a cancellation fee.
6.1 CBM shall have the right to terminate any Booking and/or any agreement between CBM and You to which these Terms apply by notice to You if You:
(a) fail to make any payment due to CBM by the due date and such failure continues for fifteen (15) days after the due date; or
(b) are in breach of these Terms or You fail to comply with any material obligations or warranties under any agreement between the parties to which these Terms apply and in either case You do not remedy the same (if capable of being remedied) within thirty (30) days of receipt of notice in writing from CBM specifying the breach or failure and calling for the same to be remedied; or
(c) compound or make arrangements with Your creditors or become insolvent or if any order is made or resolution passed for Your liquidation, winding up or dissolution or if a receiver or manager or administrative receiver or administrator is appointed over the whole or a substantial part of Your assets or of anything analogous to or having substantially similar effect of any such events shall occur under the laws of any applicable jurisdiction; or
(d) are unable to perform any of Your obligations in circumstances set out in clause 7.1 below for a continuous period of not less than twenty eight (28) days.
6.2 Termination in accordance with clause 6.1 shall be treated as a cancellation by You and You will be required to pay the cancellation sum specified in clause 5.2.
7.1 Neither party shall be liable to the other in respect of any non performance of its obligations by reason of any act of God, civil war or strife, act of foreign enemy, invasion, war, satellite failure, legal enactment, governmental order or regulation, industrial action, trade dispute, lock-out, riot or any other cause beyond their respective control provided always that in any such event the duration of the agreement between the parties shall be extended over which such event continues, but otherwise such event will not affect any of Your obligations to purchase any number of advertising spots agreed between You and CBM.
7.2 If any provision of these Terms is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of these Terms and this shall not affect the enforceability of the remainder of these Terms nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
7.3 The terms of these Terms shall not be enforceable by a third party (as defined in the Contracts (Rights of Third Parties) Act 1999 (the “Act”)) under the provisions of the Act.
7.4 You may not assign or transfer any rights or obligations under these Terms to any third party without CBM’s prior written consent.
7.5 CBM may assign, transfer or novate these Terms and the rights and obligations under it to any other party at any time and shall inform You thereof in writing within a reasonable time thereafter.
7.6 Any notice or other information to be given by either party under these Terms shall be made by first class prepaid mail (if sent from and to an address within the UK) and first class prepaid airmail (if international) to the address above or to an address or e-mail address supplied, by CBM or You (as applicable) for the such purpose, and shall be deemed to have been communicated two (2) business days after posting, if sent by first class mail, five (5) business days after posting if sent by airmail and on the next business day, if sent by e-mail.
7.7 No waiver or any breach of any of these Terms shall be deemed to be a waiver of any other breach and no waiver shall be effective unless in writing.
7.8 No term or provision in these Terms shall be varied or modified unless CBM agree in writing and signed by the parties.
7.9 These Terms together with any other document incorporating these Terms shall constitute the entire agreement and understanding between the parties in relation to its subject matter.
7.10 The parties acknowledge and agree that they have not relied on and shall have no right of action in respect of any representation, warranty or promise except as expressly provided in these Terms and for such representation, warranty or promises made fraudulently and all conditions, warranties or other terms implied by statute or common law are by these Terms excluded to the fullest extent permitted by law.
7.11 Each party shall comply with all applicable laws, codes and regulations relating to anti-bribery and anti-corruption.
7.12 These Terms and any agreement to which these Terms apply shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts, without regard to conflict of laws rules. For any dispute under this Agreement, any claim (including, but not limited to any claim for injunctive or monetary relief) will be brought only in English Courts, and neither You nor CBM will object to the exercise of personal jurisdiction by such court.