The following terms and conditions (the "Standard Terms") shall be deemed to be incorporated into the attached Advertising Order Confirmation (the "Order"):
1.DEFINITIONS
1.1 In this Contract (except where the context otherwise requires) the following words shall have the following meanings:
"Advertiser" a person making a booking whether directly or indirectly with the Company and any advertising agency making such a booking on a third party's behalf;
"Advertisement(s)" any advertising and/or sponsorship material intended for Transmission by the Company on the Channel as part of the Advertising Opportunities which is delivered by or on behalf of the Advertiser to the Company;
"Advertising Opportunities" the transmission time on the Channel available for advertising at the times and for the durations designated by the Company, and programmes and features designated by the Company as available for sponsorship subject to the limitations under any applicable laws, regulations and/or codes, including, without limitation, the regulations and/or codes of Ofcom and the ASA from time to time;
"ASA" the Advertising Standards Authority or any replacement thereof;
"BACC" the Broadcasting Advertising Clearance Centre (or any replacement thereof);
"Broadcast Date" the date on which the Advertisement is intended to be Transmitted for the first time on the Channel as described in the Order;
"Channel" the television channel operated by the Company within the Territory and currently known as Teachers' TV;
"Company" Education Digital Limited (company number 4934528) whose registered office is at 3rd Floor, 16-18 Berners Street, London W17 3LN and includes its agent(s), successors in title or assigns as the case may be;
"Contract" the agreement between the Advertiser and the Company comprising the Standard Terms and the Order;
"Fee" the fee described in the Order;
"Guidelines" the guidelines issued by the Company as set out in the Schedule to this Contract, as amended from time to time and notified to the Advertiser;
"Law" any law, statute, statutory provision, subordinate legislation, rule, regulation, direction, guideline, code (whether having the force of law or not) of any governmental or regulatory authority or agency (including without limitation the codes of practice issued by Ofcom or the ASA from time to time);
"Ofcom" the Office of Communications;
"Territory" the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man;
"Transmitted/Transmission" the broadcasting and/or transmission of the Advertisement(s) on the Channel, and "Transmit", "Transmission" and/or "non-Transmission" shall be construed accordingly.
1.2 In this Contract (except where the context otherwise requires):
1.2.1 the clause headings are included for convenience only and shall not affect the interpretation of this agreement;
1.2.2 any reference to "persons" includes individuals, firms, partnerships, companies, corporations, associations, organisations, foundations and trusts (in each case whether or not having separate legal personality);
1.2.3 use of any gender includes the other genders;
1.2.4 any reference in this Contract to any Law shall be construed as referring to such Law as the same may from time to time be amended, modified, extended, varied, superseded, replaced, substituted or consolidated.
2.ACCEPTANCE OF ADVERTISEMENTS
2.1 By placing an Order with the Company the Advertiser accepts in full the Contract. The Order is non-cancellable by the Advertiser.
2.2 Advertisements will only be Transmitted on the Channel if they are delivered in accordance with this clause 2, approved by the Company and comply with all applicable Law.
2.3 Unless otherwise agreed with the Company, the Advertiser shall procure that all Advertisements for the Channel are submitted to the BACC for pre-clearance (at the Advertisers' sole cost) and the Advertiser shall provide satisfactory written confirmation of such clearance to the Company not less than five working days prior to the Broadcast Date.
2.4 The Advertiser will provide all materials for the Advertisements no later than ten working days prior to the Broadcast Date, in accordance with the Company's policies in effect from time to time, including without limitation the Guidelines and other such technical specifications and format guidelines as to content of Advertisements as the Company may specify from time to time.
2.5 The Company reserves the right at any time, in its sole discretion and without liability to the Advertiser, to reject or cancel any Advertisement or Order or remove any Advertisement from the Channel. Any acceptance by the Company of an Advertisement shall not be deemed to constitute an acceptance by the Company that such Advertisement is provided in accordance with the Contract nor shall it constitute a waiver of the Company's rights hereunder.
2.6 The Company shall not be held responsible for any addition to, changes in, deletions from, delay in Transmission or withdrawal of any Advertisement required by any competent authority having jurisdiction over or responsibility for the regulation of advertising on the Channel (including without limitation the ASA).
2.7 Notwithstanding clause 2.6, the Company reserves the right in its absolute discretion to do any act or thing in respect of the Transmission of any Advertisement (including without limitation the editing or cutting, non-Transmission, delayed Transmission or removal from the Channel thereof) which is found to contain unsuitable material or to contravene the Guidelines without liability to the Advertiser who shall have no claim for damages or otherwise as a result thereof but the Advertiser shall remain liable to the Company for the charges payable under this Contract for such Advertisement.
2.8 If the Company decides that any Advertisement is unsuitable for Transmission then it shall notify the Advertiser who shall supply an alternative Advertisement in accordance with the provisions of this clause 2 at its own cost as soon as reasonably practical and in any event no later than five clear working days prior to the Broadcast Date. Any alternative Advertisement if accepted at shorter notice shall, at the sole discretion, of the Company be subject to a surcharge. Irrespective of whether any alternative Advertisement is supplied or accepted the Company shall be entitled to be paid in full for the advertising space booked.
2.9 The Company will use its reasonable endeavours to adhere to Advertisement copy rotation instructions (if any are supplied by the Advertiser) but shall not be liable for any failure to comply with those instructions.
2.10 The Company reserves the right in its absolute discretion to refuse Advertisements advertising more than one product.
3.TRANSMISSION OF ADVERTISEMENTS
3.1 The content, layout and Transmission of the Channel shall be subject to variation at the sole discretion of the Company.
3.2 The Company does not guarantee that the Broadcast Date and other time, dates or positions agreed for the Transmission of Advertisements on the Channel will be adhered to and all such decisions shall be at the sole discretion of the Company. If a booked Advertisement is not Transmitted at all and such non-Transmission is solely the fault of the Company, the Company will endeavour to offer an alternative Broadcast Date or times. If any such alternative date is not accepted, the original booking shall be cancelled and the Advertiser shall have no claim against the Company in respect of non-Transmission or for any expenses or damage incurred as a result thereof.
3.3 The Company shall not be liable in any way for failure to Transmit all or any part of an Advertisement to any area within the Territory for any reason whatsoever or for any error in an Advertisement which has been or is scheduled to be Transmitted.
3.4 Save as otherwise expressly agreed by the Company in writing, no protection against proximity of competitive product on the Channel is given by the Company;
3.5 In the event of the Company's Transmission of the Channel being restricted, curtailed or prevented by any Law or any other act or thing beyond the Company's control, the Company may at any time, notwithstanding anything contained in these Standard Terms, forthwith terminate this Contract in whole or in part without prejudice to the Company's right to be paid by the Advertiser any monies due at the date of termination.
3.6 The Advertiser grants the Company a royalty free non-exclusive licence to use certain of its names, trade marks and/or logos for the purpose of enabling the Company to perform its obligations under this Contract.
4.1 For TV Spot Advertising the Advertiser will be invoiced by the Company or the Company's appointed agent for the Fee at the commencement of the activity.
4.2 Payment shall be remitted in full in immediately available cleared sterling funds without deduction or withholding of any kind other than as required by Law within 30 days from the date of invoice and in accordance with its terms.
4.3 All payments referred to in this Contract are stated exclusive of value added tax and all other similar taxes and duties payable in respect of such payments. The Advertiser shall pay to the Company at the time that the payment becomes due an amount equal to the value added tax, properly chargeable upon such payment ("the VAT Amount"). The Company shall provide the Advertiser with a value added tax invoice in respect of the payment. Reference in this clause 4.3 to "payments" include non-cash consideration and expressions bearing the same meaning shall be construed accordingly.
4.4 If the Advertiser fails to pay the full amount due pursuant to this Contract by the due date the Company shall be entitled to charge interest on the overdue amount payable by the Advertiser immediately on demand from the due date up to the date of actual payment after as well as before judgment at a rate equal to the rate of statutory interest from time to time applicable under the Late Payment of Commercial Debts (Interest) Act 1998 (the "Act"), together with fixed sum compensation under the Act. Such interest shall accrue on a daily basis and be compounded quarterly.
4.5 In the event of any failure by the Advertiser to make payment, the Advertiser will be responsible for all expenses (including legal fees) incurred by the Company or its agents in collecting such amounts.
The Company shall endeavour to give a minimum of four (4) weeks' notice in respect of changes to these Standard Terms, but reserves the right to make such changes at shorter notice.
The Advertiser may not resell, assign, sub-license, transfer, charge or deal in any other manner with this Contract or any rights under this Contract or sub-contract any or all of its obligations under this Contract or purport to do any of the same. Any attempt to do any of the foregoing shall result in immediate termination of this Contract, and payment of any and all amounts due hereunder without liability to the Company and without prejudice to its other rights and remedies. Any purported assignment in breach of this clause shall confer no rights on the purported assignee. The Company may assign all or any of its rights under the Contract (including without limitation the benefit of any licence) to the Secretary of State for Education and Skills or such other party as the Secretary of State nominates.
7.1 The Company does not accept liability for any delay in delivery, loss or damage to Advertisement copy. Unless otherwise instructed in writing, Advertisement copy will be destroyed by the Company or its agents if not transmitted for a period of three months without further reference to the Advertiser.
7.2 The Company shall not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for any economic losses (including without limitation, loss of revenues or profits, contracts, business or anticipated savings), any loss of goodwill or reputation or any indirect or consequential losses (in each case whether or not such losses were within the contemplation of the parties at the date of this Contract) suffered or incurred by the Advertiser arising out of or in connection with any matter under this Contract.
7.3 Without limiting the foregoing the Company shall have no liability for any failure or delay affecting production or Transmission of the Channel and any Advertisements incorporated in it, in any manner where such failure or delay results from any governmental action, third party act, fire, flood, storm, insurrection, earthquake, power failure, riot, explosion, war or terrorist activity, embargo, strikes or other industrial action whether legal or illegal, labour or material shortage, compliance with any law or governmental order, rule, regulation or direction, transportation interruption of any kind, work slowdown, transmitter or satellite degradation, or any other interruption, failure or other condition beyond the control of the Company.
7.4 Nothing in this clause 7 shall limit the Company's liability for death or personal injury resulting from the Company's negligence or for fraud.
8. ADVERTISER'S REPRESENTATIONS; INDEMNIFICATION
8.1 The Advertiser represents, warrants and undertakes to the Company that:
8.1.1 it has the power and authority to enter into the Contract and grant all rights granted or purported to be granted and fully perform its obligations hereunder;
8.1.2 neither the Advertisement(s) nor the permitted use thereof by the Company will:
8.1.2.1 infringe the rights of any third party (including without limitation any intellectual property rights) or any other agreements;
8.1.2.2 be defamatory of any third party or offensive in any way; or
8.1.2.3 be prejudicial to the image of the Channel or to the reputation of the Company;
8.1.3 all Advertisements will comply with all applicable Law and the Guidelines;
8.1.4 no Advertisement shall cause an adverse affect on the operation of the Channel;
8.1.5 the Advertiser shall have or will have obtained prior to transmission all necessary rights, consents, licences, clearances and waivers in relation to the Advertisements (and all content including without limitation any musical recordings and compositions contained therein) to enable the Company to transmit and/or post (as applicable) the Advertisements on the Channel and the Advertiser shall be solely responsible for any and all payments due to third parties as a result of such transmission and shall promptly upon request provide the Company with all music cue sheets and other information that it requests regarding the music contained in any the Advertisement;
8.1.6 no Advertisement will constitute an invitation or inducement to engage in investment activity within the meaning of the Financial Services and Markets Act 2000;
8.1.7 all information provided by it to the Company shall be accurate and up to date;
8.1.8 it is properly registered under and has and will comply with all relevant requirements of the Data Protection Act 1998 and any directions issued by the Information Commissioner in relation to obtaining, storing and use of personal data derived from viewers of Advertisement(s) or otherwise in connection with this Contract.
8.2 The Advertiser agrees to indemnify and keep the Company fully and effectually indemnified on demand from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses and loss of profit and legal costs and expenses and value added tax thereon) and liabilities suffered or incurred directly or indirectly by the Company in consequence of:
(a) any breach, non-performance or non-observance by the Advertiser of any of its agreements, obligations, warranties, representations and undertakings contained in this Contract; and/or
(b) the use, Transmission or reproduction of the Advertisement(s) on the Channel.
8.3 This Clause 8 shall continue in full force and effect notwithstanding any suspension or termination of this Agreement.
In the event of any inconsistency between the Order and these Standard Terms, these Standard Terms shall prevail.
10. PUBLICITY AND INFORMATION CONCERNING ADVERTISEMENTS
The Advertiser shall not without the prior consent of the Company claim any association with the Company or use the Company's name, mark or logo or otherwise refer to the Company or its services or publish any information in connection with any Advertisement which has been Transmitted or is scheduled for Transmission on the Channel.
11.1 Either party (the "Non-Defaulting Party") may bring this Contract to an end and/or require payment of any amounts due under this Contract (without prejudice to its other rights and remedies) with immediate effect by written notice to the other party (the "Defaulting Party") if:
11.1.1 the Defaulting Party commits a breach of its material obligations under this Contract and if the breach is capable of remedy, fails to remedy it during the period of thirty (30) days starting on the date of receipt of notice from the Non-Defaulting Party requiring it to be remedied;
11.1.2 the Defaulting Party becomes insolvent (including being unable to pay its debts as they fall due and/or that the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities), proposes an individual, company or partnership voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets; if any petition shall be presented, order shall be made or resolution passed for its winding up (except for the purpose of bona fide amalgamation or reconstruction), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers); if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them or if it ceases or threatens to cease to carry on business;
11.2 Each party shall immediately give notice in writing to the other party of any event within clause 11.1.2 which would entitle the other party to bring this Contract to an end.
12.1 Any notice given under this Contract shall be in writing and served by hand, prepaid, recorded or special delivery post to the relevant addressee at the address referred to in the Order or such other address as the relevant party may designate to the other in writing from time to time. Any such notice shall be deemed to have been served at the time of delivery. For the avoidance of doubt, notice given under this Contract shall not be validly served if sent by email.
12.2 Except insofar as this Contract expressly provides that a third party may in his own right enforce a term of this Contract, a person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act. Neither party may declare itself a trustee of the rights under this Contract for the benefit of any third party.
12.3 Nothing in this Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other and no party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other unless expressly provided otherwise in this Contract.
12.4 This Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or arrangement between the parties relating to the subject matter of this Contract. In entering into this Contract the parties have not relied on and shall have no remedy in respect of any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to this Contract or not) other than as expressly set out in this Contract. Nothing in this clause 12.4 shall operate to limit or exclude any liability for fraud.
12.5 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, the terms and conditions or existence of this Contract or any confidential information concerning the business or affairs of the other party which may have or may in the future come to its knowledge. This clause 12.5 shall continue in full force and effect notwithstanding any suspension or termination of this Contract.
12.6 If any provision of this Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Contract which shall remain in full force and effect.
12.7 The failure to exercise or delay in exercising a right or remedy provided by this Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Contract or of a default under this Contract does not constitute a waiver of any other breach or default and shall not affect the other terms of this Contract and will not prevent a party from subsequently requiring compliance with the waived obligation.
12.8 The validity, construction and performance of this Contract shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim, dispute or matter arising under or in connection with this Contract or the legal relationships established by this Contract.
Guidelines
Without prejudice to the requirements of applicable Law and to the Company's rights and remedies under the Standard Terms, an Advertisement will not be approved by the Company unless, in the Company's sole discretion:
1. it is compatible with the spirit and the objectives of, and is not in any way detrimental to the content and/or image of, the Channel;
2. it does not contain or refer to any testimonial or endorsement unless it is genuine, verifiable, relevant and based on personal experience or knowledge;
3. it is capable of substantiation if it relates to verifiable facts;
4. it complies with the BCAP Television Advertising Standards Code and any other applicable industry codes and guidelines including without limitation those issued by the ASA or Ofcom from time to time; and
5. it complies with such reasonable technical requirements as the Company may notify to the Advertiser from time to time.