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Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these Conditions:
Advertising Copy means any advertising copy/content issued as part of the Advertising Services;
Advertising Services means the provision of advertising and associated services by the Company for the Client in the relevant local area edition(s) of the classified directory “Postcode ads” (online and printed versions);
CAP Code means the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing issued by the Committee of Advertising Practice (as may be amended or replaced from time to time).
Client means the person, firm or company who purchases the Advertising Services from the Company for their trade or business;
Company Material means all samples, drawings, descriptive matter, artwork, designs, photographs, software and all other material created by the Company for the Advertising Services, but excluding any branding, content and/or materials owned or supplied by the Client;
Conditions means these terms and conditions;
Confirmation of Order means a written confirmation of the Client’s order for Advertising Services issued to the Client under clause 2.4, usually by email or post.
Contract means any contract between the Company and the Client for the provision and purchase of the Advertising Services, incorporating these Conditions.
1.2 All other defined words or phrases shall have the meaning given to them when they first appear in that form.
1.3 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 Clause headings do not affect the interpretation of these Conditions.
2.1 Subject to any variation under clause 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s Advertising Services and any variation to these Conditions and any representations about the Advertising Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this clause shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Advertising Services by the Client from the Company shall be deemed to be to be an offer by the Client to purchase the Advertising Services concerned subject to these Conditions. No order for the Advertising Services placed by the Client shall be deemed to be accepted by the Company until a written Confirmation of Order is issued by the Company.
2.5 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches a Confirmation of Order for the Advertising Services to the Client. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3 Contract for Advertising Services/ 6 Month Advertising Period
3.1 The Client appoints the Company to carry out and the Company agrees to provide the Advertising Services to the Client under the Contract in accordance with these Conditions throughout the Advertising Period, subject to earlier cancellation in accordance with these Conditions. Upon expiry of the Advertising Period, the Contract will expire automatically.
3.2 Unless expressly agreed in writing between the Client and the Company, the Advertising Period during which the Contract for Advertising Services will automatically continue (subject to earlier cancellation in accordance with these Conditions) is 6 months. For the avoidance of doubt, this period covers six separate monthly advertisements.
3.3 The Company’s contract with Royal Mail for the delivery of Company Materials guarantees delivery to a minimum of 95% of home and business addresses within the Company’s stated postcode areas. In the event of issues with the Royal Mail service we may employ the services of additional delivery companies.
4.1 The Client must ensure that the terms of the Confirmation of Order and the proposed Advertising Copy issued by the Company are complete and accurate, and contact the Company promptly upon receipt in the event of any requested changes or queries. The terms of the Advertising Copy shall be deemed to be approved by the Client for publication if either (a) the Client confirms this to the Company or (b) if no request for changes are received from the Client by the Company within 3 working days of receipt by the Client of the proposed Advertising Copy.
4.2 After the Advertising Copy is approved (or deemed approved) by the Client in accordance with clause 4.1, any subsequent changes to the Advertising Copy must be made in accordance with clause 5.1.
4.3 The Client is responsible for ensuring that all advertising published is in accordance with the CAP Code and all applicable laws and regulations. The Client must also give the Company clear briefings and ensure that all the facts given about its business for the Advertising Service are accurate and not misleading.
4.4 For the avoidance of doubt, the Client will assist the Company in the provision of the Advertising Services by promptly making available to the Company upon request all relevant information and by co-operating reasonably with the Company.
5 Cancellation and Amendments to Advertising
5.1 The Client may cancel the Advertising Services (or amend any and all Advertising Services, including making changes to the Advertising Copy) at any time by providing not less than 1 month’s prior notice to the Company.
5.2 The Company will comply with any notice provided by the Company under clause 5.1, subject always to its own printing commitments or contractual obligations to any third party.
5.3 In the event of any such cancellation or amendment the Client will reimburse the Company for any charges or expenses incurred by the Company to which the Company is already committed (for whatever reason). The Client shall also pay to the Company its lost profits arising from the cancelled or amended Advertising Services, as well as any charges imposed on the Company by third parties arising from the cancellation or amendment.
5.4 The only way to cancel your booking is by calling the sales department on 01759 304668 and giving one full month’s notice. On doing this you will be given a cancellation number which is your proof of cancellation.
6 Price and Payment
6.1 Unless otherwise agreed by the Company in writing, the price for the Advertising Services shall be the price set out in the Company’s quotation or Confirmation of Order. The price is payable each month during the Advertising Period by any of the payment methods offered from time to time by the Company.
6.2 Subject to clause 6.5, payment of each instalment of the price for the Advertising Services is due 30 days from the date of the relevant invoice (which the Company usually issues by email).
6.3 Time for payment shall be of the essence.
6.4 No payment shall be deemed to have been received until the Company has received cleared funds.
6.5 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
6.6 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Client.
6.7 If the Client fails to pay the Company any sum due pursuant to the Contract, the Client shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
8.1 All copyright and other intellectual property rights subsisting in the Company Materials and the Advertising Services shall be owned by the Company.
8.2 For the avoidance of doubt, the Company Materials shall be owned by the Company and, upon termination of the Contract in accordance with clause 11, shall be delivered up to and remain in the possession of the Company.
The Client will indemnify and hold the Company, its officers, employees and agents harmless from and against all liabilities, costs, damages, claims or expenses which the Company incurs or suffers as a result of any breach by the Client of these Conditions, or as a result of any use of any Company Materials which the Client does not own or have the necessary rights or permissions. This will include, without limitation, any claims from third parties for actual or alleged breach of copyright, trade marks, designs or other intellectual property rights arising from the Advertising Services.
10 Limitation of Liability
10.1 This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of these Conditions;
(b) any representation, statement or tortuous act including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
10.4 Subject to clause 10.2 and clause 10.3:
(a) the Company shall not be liable for:
(i) loss of profits;
(ii) loss of business;
(iii) depletion of goodwill and/or similar losses;
(iv) loss of anticipated savings;
(v) loss of goods;
(vi) loss of contract;
(vii) loss of use;
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for such Advertising Services.
11.1 The Client may terminate the Contract by giving notice of cancellation of the Advertising Services in accordance with clause 5.1.
11.2 Either party may terminate the Contract at any time forthwith by giving notice in writing to the other party if the other party:
(a) is in material breach of any of the terms of these Conditions and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
(b) (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
(c) (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
(d) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(e) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(f) ceases, or threatens to cease, to carry on business.
11.3 The parties’ rights, duties and responsibilities shall continue in full force during any period of notice of termination given under the Contract.
11.4 Upon termination of the Contract for any reason:
(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Advertising Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt; (b) the Client shall return all of the Company Materials;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
12 Survival of Obligations on Termination
The following clauses shall survive the expiry or termination the Contract:
(a) Clause 6 Price and Payment
(b) Clause 8 Copyright
(c) Clause 9 Indemnity
(d) Clause 10 Limitation of liability
(e) Clause 11 Termination
(f) Clause 19 Notices
(g) Clause 20 Governing Law and Jurisdiction
The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to these Conditions shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.
14 Force Majeure
Neither party shall be liable for any default due to any act of God, war, strike, lockout, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
If any provision of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of these Conditions which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
Neither party shall assign, transfer, charge or deal in any other manner with these Conditions or any of its rights under it without the prior written consent of the other party, such consent not to be unreasonably conditioned, withheld or delayed.
A person who is not a party to these Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term or condition of these Conditions.
18.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
18.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Contract.
18.3 Nothing in this clause shall limit or exclude any liability for fraud.
19 Governing Law and Jurisdiction
19.1 The Contract (including these Conditions) and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales (including non-contractual disputes or claims).
19.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with the Contract (including these Conditions) or its subject matter or formation (including non-contractual disputes or claims).