In these Terms and Conditions, the following expressions will have the following meanings unless inconsistent with the context:
‘Advertisement’ any Advertisement which the Publisher supplies to the Advertiser to publish on the Website under Contract as well as, but not restricted to newsletter, advertorial, retail directory, retailer/designer gallery, competitions and display space, where appropriate, and which may be displayed other than on the Website.
‘Advertiser’ the person(s), firm or company whose order for the Advertisement is accepted by the Publisher.
‘Advertiser Marks’ all trademarks, service marks, trade names, logos and other distinctive brand features of the Advertiser
‘Business Day’ any day other than a Saturday or Sunday or a public or bank holiday in England.
‘Confidential Information’ all information in respect of the business of the Publisher including, but not limited to, know-how or other matters connected with the Advertisement, and information concerning the Publisher’s relationships with actual or potential clients, customers or Advertisers and the needs and requirements of the Publisher and of such persons and any other information which, if disclosed, will be liable to cause harm to the Publisher.
‘Contract’ a legally binding order for the sale and purchase of an Advertisement and accepted by the Publisher in accordance with Condition 4.
‘End date’ as set out in the Acknowledgement of Order.
‘Intellectual Property Rights’ all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions
‘Order’ Acknowledgement of Order Form
‘Publisher’ TMG Media Limited t/a SoSensational.
‘Publisher Marks’ all trademarks, service marks, trade features of the Publisher.
‘Quotation’ the quotation issued by the Publisher to the Advertiser
‘Specification of Advertisement’ in relation to the Advertisement, the technical specifications of the Advertisement supplied by the Advertiser as set out in the Quotation and Acknowledgement of Order Form
‘Start Date’ as set out in the Acknowledgement of Order Form
‘Terms and Conditions’ the standard terms and conditions of sale set out in this document together with the Order
‘Technical Specifications’ the technical specifications set out by the Publisher, which may vary from time to time.
‘Written notice’ shall mean notice in writing, delivered by post or by hand, or by email.
All Contracts are subject to these Conditions and no variation or addition thereto shall be effective unless specifically agreed to in writing by the Publisher and signed by a Director of the Publisher. Any other terms or conditions sought to be imposed by the Advertiser are expressly excluded.
The Publisher reserves the right to change, amend or re-design parts of or the entire lay out of the Website at any time and without giving notice to the Advertiser.
The Advertiser expressly acknowledges that he has not relied on any representation made by or on behalf of the Publisher in entering the Contract.
To place an order, the Advertiser will complete the relevant details on the Order Form, including signature and date and return the Order Form to the Publisher. All orders are accepted subject to acceptance of text and images by the Publisher, as indicated in Condition 7, and if it is intended to include in an Advertisement a competition or a special offer of merchandise, other than that normally associated with the advertised product, full details of such competitions or special offers must be submitted by the Advertiser in writing at the time the order is negotiated.
- Quotations and Publisher’s Acceptance
6.1 The issue of a Quotation does not constitute an offer by the Publisher to contract.
6.2 A quotation by the Publisher is valid for a period of 21 days only from the date it is issued, provided it is not withdrawn by the Publisher.
6.3 A Contract is made only by the Publisher’s acceptance of the Advertiser’s order as effected by the Publisher issuing an Acknowledgement of Order Form.
- Publisher’s Approval
7.1 All content of Advertisements are subject to the Publisher’s approval. The Publisher does not undertake to review the contents of any Advertisements and any such review of and/ or approval by the Publisher will not be deemed to constitute an acceptance by the Publisher that such Advertisement is provided in accordance with these Advertising Terms and Conditions nor will it constitute a waiver of the Publisher’s rights hereunder.
7.2 If the Publisher considers it necessary to modify space or alter the date or position of insertion or make any other alteration it shall notify the Advertiser of this as soon as it reasonably can.
7.3 The Publisher reserves the right to reject, cancel or remove any Advertisement from the Website or position reservation at any time, or reject any URL link embodied within the Advertisement.
- Advertisement Alterations
The Publisher may make any changes to the Advertisement which are required to conform with any applicable statutory or regulatory requirements including removing the Advertisement with no liability to the Publisher.
- Creative Content
The Advertiser must deliver complete creative content to the Publisher at least 3 business days before 9am on the go-live date in a format which complies with the Publisher’s ad formats for such content. If creative content is not supplied by the copy deadline, the Publisher may display an Advertisement with basic details for the Advertiser, without liability to the Publisher.
- Proofs of Advertisement Copy
10.1 In circumstances where, at the Publisher’s discretion, the Publisher arranges to supply proofs of Advertisement copy to the Advertiser, all corrected copy must be supplied by the Advertiser to the Publisher by 9am two full days before go-live date, failing this the Publisher cannot guarantee that corrections will be made.
10.2 If copy instructions are not received by the last day for receiving copy the Publisher reserves the right in its absolute discretion to repeat Advertiser’s existing copy in its possession where appropriate or where the Publisher does not hold any copy to omit the Advertisement and to charge for the space reserved.
10.3 For copy supplied via electronic means, the Advertiser must adhere to the Technical Specifications issued by the Publisher. In the event that the Advertiser does not comply with the Technical Specifications, the Publisher reserves the right in its absolute discretion to reject the copy and the Advertiser will be asked to re-supply. If, due to technical, time or other reasonable constraints, the Publisher has to repair or rectify the file, the Publisher may (at its sole discretion) notify the Advertiser and shall not be liable for any inaccurate reproduction of the Advertisement or any resulting costs whether direct or indirect.
To alter an Order the Advertiser must inform the Publisher by email to the address on the Order, at least 3 working days before 9am on the go-live date, otherwise, the Publisher may not be able to achieve the specified go-live date. Any costs incurred in altering the Advertisement from that which was agreed when issuing the Order will be the responsibility of the Advertiser.
- Product Gallery
The rate charged by the Publisher for a paid-for product gallery allows for up to four alterations per month of images and accompanying text. Additional charges will be applied for any changes made over the above allowance. The Publisher will notify the Advertiser of such charges.
- Code, Tags, Cookies etc
Advertisements may contain only such information and code as is necessary to run the Advertisement effectively on the Publisher’s site. Advertisements may not contain tags, cookies, beacons, keywords or similar technology which identifies users of any Publisher site or enables the Advertiser or any third party to serve such users with any advertising other than the Advertisement.
If an Advertisement is supplied which does not comply with these terms and conditions or the Publisher receives complaints regarding an Advertisement, the Publisher may, at its discretion, remove the Advertisement from display without reference or liability to the Advertiser. No form of refund will be given. Similarly, if the Advertiser fails to supply an Advertisement, payment in full will remain due.
- Lack of Clarity
Advertisements will be published to the representation as provided by file (or other accepted medium) by the Advertiser and the Publisher shall not be liable for any lack of clarity or other error in representation that results from the representation of the Advertisement as it was provided by the Advertiser. Reasonable standard charges will be made to the Advertiser where production work of any kind is required to put the Advertisement in a form suitable for uploading, for any reason and at any stage. The Publisher will notify the Advertiser of such charges in writing upon receipt of advertising copy.
- Advertisement Removal
The Publisher may remove any Advertisement which contains content or links to a site which, in the Publisher’s opinion is defamatory or objectionable or will bring the Publisher into disrepute. The Advertiser will indemnity the Publisher from and against any claims or liability arising from links contained in an Advertisement.
- Advertiser’s Obligations
17.1 It is the Advertiser’s responsibility to check the accuracy of the Advertisement. The Advertiser warrants that any Advertisement submitted by it for publication shall comply with all applicable laws, legislation, regulations, codes of practice and is not an infringement of any other party’s rights. The Advertiser will indemnify the Publisher fully for all costs, expenses, damages or liability whatsoever (including legal costs and awards ordered against the Publisher) in respect of any claim made against the Publisher arising from the Advertisement or its publication or as a result of any breach or non-performance of any of the representations, warranties or other terms contained herein or implied by law.
17.2 The Advertiser will make the Advertiser Website(s) available to Website visitors who wish to access them via the hyperlink(s) on the Advertisement provided by the Publisher pursuant to Condition 18.1and will provide to the Publisher the necessary identifying code to enable the implementation and activation of such hyperlink(s).
17.3 For the avoidance of doubt, nothing in the Contract shall prohibit the Advertiser from selling and offering to sell its products and/or services from the Advertisers Websites to persons other than Website visitors or from any third party websites.
17.4 The Advertiser acknowledges that the goodwill and reputation of the Publisher will be damaged if Website visitors receive a standard of service from the Advertiser below that which the Publisher would reasonably expect such Website visitors to receive. Accordingly, the Advertiser shall provide a good standard of service to Website visitors who access the Advertiser Website(s) via any hyperlink from the Website.
- Publisher’s Obligation
18.1 The Publisher will ensure that the Advertisement on the Website will display a graphical icon leading via hyperlink to at least one of the Advertiser Website(s) as agreed between the parties from time to time.
18.2 The placement of the hyperlink and the relevant identifying code issued by the Advertiser must be implemented by the Publisher and approved by the Advertiser, such approval not to be unreasonably withheld, prior to activation of the hyperlink.
18.3 The Publisher does not guarantee any minimum number of Website visitors linking to the Advertiser Website(s) or purchasing any products and/or services from the Advertiser Website(s).
18.4 The Publisher has the right to select which providers of products and services are appropriate to the Publisher s customers and therefore the Publisher does not give any warranty or representations to the Advertiser as to which of the Publisher s customers will agree to the use of the hyperlink(s) to the Advertiser Website(s).
18.5 The Publisher shall not be liable to the Advertiser in any manner whatsoever in the event that the Website is not available to Website visitors at any time and for any period.
18.6 For the avoidance of doubt, nothing in the Contract shall prohibit the Publisher from placing links on the Website to other websites which may compete or be similar to the Advertiser Website(s).
18.7 The publisher shall not be liable for the content of any materials published on the Website which are created, developed or written by third parties or the Publishers customers.
18.8 The Publisher will exercise reasonable care and skill in the handling and uploading of the Advertisement but where the Advertisement is not uploaded in the manner specified in the Contract, whether through any failure or negligent act or omission on the part of the Publisher or any third party, the Publisher’s maximum liability to the Advertiser shall be limited (at the option of the Publisher) to publishing the Advertisement (or a replacement Advertisement if provided by the Advertiser) as soon as is reasonably practicable in the period following the period during which the Advertisement was scheduled to run. The Publisher shall not be liable for any indirect, special or consequential loss or damage arising from any failure to publish an Advertisement as agreed with the Advertiser, including, but without limitation, any late or incorrect publication, any non-publication or inaccurate reproduction of the Advertisement, whether caused by the Publisher’s error or negligence or by any reason whatsoever. The Publisher shall not be liable whatsoever in respect of any error or omission in respect of publishing the Advertisement which is not notified to the Publisher in writing within one calendar month of the actual publication date of the Advertisement.
- Mutual Obligations
19.1 Subject to the terms and conditions of the Contract, the Advertiser hereby grants to the Publisher a non-exclusive, royalty-free, world-wide license to use, reproduce and display the Advertiser marks within the website but for the purposes only of the Contract and subject to the prior written consent of the Advertiser.
19.2 Subject to the terms and conditions of the Contract, the Publisher hereby grants to the Advertiser a non-exclusive, royalty-free, world-wide license to use, reproduce and display the Publisher marks within the Advertiser website(s) subject to the prior written consent of the Publisher.
19.3 Neither party shall appoint any sub-licensee under the Contract or in relation to the subject matter of any licence granted to it pursuant to this Agreement without the prior written consent of the other party.
20.1 The Publisher acknowledges and agrees that, save for any Publisher Marks used therein, the Advertiser owns all right, title and interest in the Advertiser Website(s) and the Advertiser Marks.
20.2 The Advertiser acknowledges and agrees that, save for any Advertiser Marks used therein, the Publisher owns all right, title and interest in the Website and the Publisher Marks.
- Advertisement rates
21.1 Advertisement rates are subject to revision at any time and the price prevailing at the time the Contract is made binds the Publisher only in respect of the agreed booking as confirmed by the Publisher’s Acknowledgement of Order Form.
21.2 The price for the Advertisement will be the price specified in the Quotation and is exclusive of any Value Added Tax or other applicable sales tax or duty which will be added to the sum in question.
21.3 The Publisher will be entitled to increase the price of the Advertisement following any changes in the Advertisement made both at the request of the Advertiser and agreed by the Publisher or to cover any extra expense as a result of the Advertiser’s instructions or lack of instructions.
22.1 The Publisher may invoice the Advertiser for the Advertisement on the Start Date and subject to Condition 23.1 (a) payment is due in pounds sterling 14 days after service of such invoice.
22.2 Time for payment will be of the essence.
22.3 No payment will be deemed to have been received until the Publisher has received cleared funds.
22.4 All sums payable to the Publisher under the Contract will become due immediately upon termination of the Contract.
22.5 If the Advertiser cancels any Contract, he relinquishes any right to that series discount (if any) to which it was previously entitled and Advertisements will be paid for at the appropriate rate. A new invoice will be issued for any surcharges relating to Advertisements that have already been invoiced at the discounted rate. The payment date for any previous invoices remains unaffected.
22.6 If the Advertiser defaults in making payment of any sums by the due date, the Publisher reserves the right to require immediate payment for all advertising space booked by the Advertiser (failing which the Publisher shall be entitled to terminate the Contract forthwith by written notice to the Advertiser) and to require payment in advance for future bookings, and pending such payment to omit or suspend all or any Advertisements due to appear, or appearing, under an existing Contract with the Advertiser.
22.7 The Publisher reserves the right to impose a surcharge of 3% per month on overdue amounts.
22.8 Any credit will only be granted after obtaining satisfactory banking, trade and credit reference agency clearance and the Advertiser will be informed by the Publisher once it is ready to provide such account facilities.
22.9 The Advertiser shall not set-off or claim to set-off for any reason whatsoever any sum or amount whether in dispute or agreed which may be payable by the Publisher to the Advertiser against any sum or amount whatsoever payable by the Advertiser to the Publisher.
23.1 The Advertiser represents and warrants to the Publisher that:
(a) It has the full corporate right, power and authority to enter into a Contract and to perform its obligations thereunder;
(b) The execution of a Contract by the Advertiser, and the performance by the Advertiser of its obligations and duties hereunder, does not and will not violate any agreement to which the Advertiser is a party or by which it is otherwise bound;
(c) When executed and delivered by the Advertiser, a Contract will constitute the legal, valid and binding obligation of the Advertiser, enforceable against such party in accordance with its terms;
(d) it has the right to publish the contents of the Advertisement, without infringement of any Intellectual Property Rights or any rights whatsoever of any other person;
(e) the Advertiser will at all times comply with the Data Protection Act 1998 and the Telecommunications (Data Protection and Privacy) Regulations 1999 including (both as amended or re-enacted from time to time), without limitation, in connection with the Website;
(f) the Advertisement and the Advertiser Website(s) will not libel, defame, cause injury to, invade the privacy of or otherwise violate any other rights of any person or be prejudicial to the image or rights of the Publisher or Website or contain any content which is unlawful, obscene, indecent or immoral or promotes illegal or unlawful activities;
(g) the Advertisement submitted to the Publisher by the Advertiser will comply with the codes of practice issued by the Advertising Standards Authority in respect of on-line and electronic advertising and all other relevant industry codes of practice and if the Advertiser is a member of a professional body, that the Advertisement will comply with such professional body’s code of practices;
(h) the Advertisement is not a promotion of financial services and / or products and complies with the Consumer Credit Act 1974;
(i) the Advertisement and the Advertiser Website(s) will comply with all applicable laws and regulations including without limitation payments of any relevant fees.
23.2 The Advertiser will indemnify, keep indemnified and hold harmless the Publisher from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profit, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) which the Customer incurs or suffers arising directly or indirectly out of or in connection with any breach of contract, including but not limited to, in relation to the content or materials of the Advertiser Website(s) to which users can link through the Advertisement, or the provision of the Advertisers products and/or services to the Advertiser Website(s) users to which the Website users can link through the Advertisement, or the Advertisement or information or materials on the Website provided by the Advertiser.
- Termination and Suspension
24.1 The Publisher may by notice in writing served on the Advertiser terminate the Contract immediately;
24.1.1 If the Advertiser is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Advertiser fails to remedy such breach within 30 days service of a written notice from the Publisher, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 17.2 is a material breach of the terms of the Contract which is not capable of remedy.
24.1.2 if the Advertiser becomes bankrupt, insolvent, makes any composition with his creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
24.1.3 if the Advertiser has any distraint, execution or other process levied or enforced on any of its property;
24.1.4 if the Advertiser ceases to trade or appears in the reasonable opinion of the Publisher likely or is threatening to cease to trade;
24.1.5 if in the Publisher‘s reasonable opinion the Advertisement is:
18.104.22.168 inflammatory or damages or may damage the reputation of the Publisher or any other party; or
22.214.171.124 does not conform to statutory or regulatory requirements or ceases to conform due to a change in any regulations, including but not limited to the Advertising Standard Authorities codes;
24.1.6 the Publisher receives a complaint from any other party in relation to the advertisement or the Advertisers Website(s): or the equivalent of any of the above occurs to the Advertiser under the jurisdiction to which the Advertiser is subject.
24.2 The Publisher will be entitled to temporarily remove any Advertisement if any of the events set out in Condition 25.1 occur until such event ceases.
- Consequences of Termination
25.1 In the event of the termination of the Contract for whatsoever reason:
(a) the Publisher will cease to reproduce and/or display any and all of the Advertiser Marks and the Advertiser will cease to reproduce and/or display any and all of the Publisher Marks;
(b) the Advertiser agrees to pay forthwith to the Publisher all outstanding payments (if any) due to the Publisher; and
(c) each party shall return to the other party, or destroy and confirm such destruction to the other party, all confidential information of the other party then in its control or possession.
25.2 Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- Limitations of Liability
26.1 Nothing in the Contract shall exclude or limit either party’s liability for fraud or for death or personal injury resulting from the negligence of that party.
26.2 Subject to Condition 27.1, the liability of the Publisher whether in contract, tort, negligence, pre-contract or other representations or otherwise arising out of or in connection with the Contract or the performance or observance of its obligations under the Contract, and every applicable part of it shall be limited to the total amount paid by the Advertiser to the Publisher under the Contract.
26.3 Subject to Condition 27.1, the Publisher shall not be liable to the Advertiser in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with the Contract for:
(a) any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings);
(b) any loss of goodwill or reputation;
(c) any loss of data; or
(d) any special, indirect or consequential losses whether or not such losses were within the contemplation of the parties at the date of this Agreement.
- Confidentiality and Publicity
27.1 Each party undertakes that it and its servants, agents and sub-contractors will keep in confidence and not use or disclose to any third p party without the prior written consent of the other party any material or information relating to the affairs of either party which is disclosed by either party to the other or acquired from either party in the course of performance of its obligations under the Contract, except such disclosure to those persons on a strictly need to know basis to whom it is necessary in order to perform its obligations under the Contract. Each party shall inform all recipients of the other s information of their obligations of confidentiality.
27.2 Nothing contained in Condit ion 28.1 shall apply to prevent either party from disclosing any information:-
- a) in its possession (with full right to disclose) prior to receiving it from the disclosing party; or
- b) which is or becomes public knowledge other than by breach of this Condition; or
- c) which it may independently develop or receive from a third party (with full right to disclose); or
- d) which it is required to disclose by legislation or regulatory requirements.
27.3 Neither party shall issue by any medium any public announcement, whether written or otherwise, in relation to the subject matter of the Contract (save in respect of any advertisements of and publicity of the Website or the Advertiser Website(s)) except with the prior written consent of the other party.
28.1 The Publisher will be deemed not to be in breach of the Contract or otherwise liable to the Advertiser in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to any events outside its reasonable controls.
28.2 Each right or remedy of the Publisher under any Contract is without prejudice to any other right or remedy of the Publisher under this or any other Contract.
28.3 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract which will remain in full force and effect.
28.4 No failure or delay by the Publisher to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
28.5 The Publisher may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
28.6 The Contract is personal to the Advertiser who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Publisher s prior written consent.
28.7 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
28.8 The Contract contains all the terms which the Publisher and the Advertiser have agreed in relation to the Advertisement and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Advertisement. The Advertiser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Publisher which is not set out in the Contract or Specification. Nothing in these Terms and Conditions will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
28.9 No person who is not a party to this Contract has any right under the Contracts (Right of Third Parties) Act 1999 to enforce any part of this Contract.
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.
Addendum with effect from 18 January 2016
Where SoSensational hosts a competition, the data capture will be provided in an Excel spreadsheet format as prepared by the computer software of SoSensational. SoSensational will not, under any circumstances, undertake any changes to the Excel format. If the prize giving brand requires an alternative format to meet their own database format, this work is to be undertaken by the prize giving brand and is not the responsibility of SoSensational.