Online Terms and Conditions of Advertising
1. DEFINITIONS
Advertisement: The advertisement comprising the Copy for publication on the Website or the Comparable Website in accordance with the
Confirmation.
Advertiser: The company, partnership, sole trader or individual who books advertising space on the Website.
Advertising Period: The period during which the Advertisement is to be delivered to visitors to the Website or the Comparable Website, as specified
in the Confirmation.
Comparable Website: A website published by or on behalf of the Publisher which, in the Publisher's reasonable opinion, is of a comparable nature to
the Website.
Conditions: These terms and conditions, as varied from time to time by the Publisher.
Confirmation: The order confirmation sent by the Publisher to the Advertiser.
Contract: The contract between the Publisher and the Advertiser as defined in paragraph 2.2.
Copy: The advertising copy supplied by the Advertiser to the Publisher (whether in the form of artwork, photographs, graphics, film or
illustrative material, articles, features or words), which shall be used by the Publisher to create the Advertisement.
Copy Deadline: 9.00 am on the date indicated on the Confirmation.
Domain Name: The domain name of the Website or the Comparable Website.
Group Company: Any subsidiary or subsidiary undertaking or holding company or parent undertaking of the Publisher and any subsidiary or
subsidiary undertaking of that holding company or parent undertaking from time to time each as defined in section 736
Companies Act 1985 (as amended or superseded).
Impressions: The number of times that the Advertisement is displayed to a visitor to the Website or the Comparable Website each month (or
part) during the Advertising Period.
Minimum Price: The minimum amount payable by the Advertiser to the Publisher in consideration for the Publisher delivering the Advertisement
to visitors to the Website or the Comparable Website each month (or part) during the Advertising Period, as specified in the
Confirmation.
Price: The price payable by the Advertiser to the Publisher in consideration for the Publisher delivering the Advertisement to visitors to
the Website or the Comparable Website each month (or part) during the Advertising Period, which shall: be no less than the
Minimum Price; calculated in the manner specified in the Confirmation; and based on the number of Impressions generated
during that month (or part).
Principal: The Advertiser except where the Advertiser is acting as agent for another company, partnership, sole trader or individual, in
which case that other company, partnership, sole trader or individual shall be the Principal.
Publisher: Merricks Media Limited, whose registered office is at 3, Riverside Court, Lower Bristol Road, Bath, BA2 3DZ
Specification: The technical specification to which the Copy must adhere, as specified in the Confirmation.
Website: The website published by or on behalf of the Publisher, as specified in the Confirmation.
2. CONTRACT
2.1 The Contract (as defined in paragraph 2.2) is made between (1) the Publisher and (2) the Advertiser and the Principal. If the Advertiser is not the Principal, the Advertiser shall be jointly and severally responsible and liable with the Principal for the obligations and liabilities of the Principal and references hereafter to the Advertiser shall include the Principal.
2.2 A request from the Advertiser to display the Advertisement on the Website shall be binding on the Advertiser for 10 days from the date the Publisher receives that request. A binding contract for the display of the Advertisement on the Website or the Comparable Website in accordance with these Conditions (“Contractâ€) shall, unless otherwise agreed, only be made when the Publisher dispatches the Confirmation to the Advertiser within that period.
2.3 No variation of these Conditions or the Contract shall be binding unless agreed in writing and signed by an authorised representative on behalf of the Publisher.
2.4 The Publisher reserves the right to cancel the Contract and/or omit any Advertisement due to be displayed to visitors to the Website or the Comparable Website if: (a) the Copy is not reasonably acceptable to the Publisher; or (b) the Copy is or may, in the reasonable opinion of the Publisher, be obscene, blasphemous, libellous, defamatory, indecent, inaccurate, misleading, inappropriate for the Website or the Comparable Website, in contravention of any applicable laws, rules, regulations, guidance or codes of practice or give rise to any claims or complaints from a third party; or (c) the Copy infringes or may infringe the intellectual property or proprietary rights of any person, (d) the Advertiser is in breach of these Conditions including, without limitation, paragraph 7; or (e) the Copy does not comply with the Specification.
2.5 The Advertiser acknowledges and agrees that the Publisher shall use a third party to target the delivery of the Advertisement to those visitors to the Website or the Comparable Website who meet certain criteria agreed between the Advertiser and the Publisher and as such the Advertisement may not be displayed to all visitors to the Website or Comparable Website.
3. PUBLICATION
3.1 Delivery of the Advertisement is subject to the Copy complying with paragraph 2.4 and sufficient space being available on the Website or the Comparable Website during the Advertising Period. The Publisher gives no warranty or guarantee that sufficient space will be available. Nothing in these Conditions or the Contract shall prevent or restrict the Advertiser from redesigning the Website or the Comparable Website. Subject to paragraphs 4.1 and 6 the Advertiser shall not be liable for the Price where the Advertisement is not delivered to visitors to the Website or the Comparable Website during the Advertising Period due to any act, default or omission of the Publisher.
3.2 The Publisher shall use reasonable endeavours to deliver the Advertisement to visitors to the Website in accordance with the Confirmation. Notwithstanding the generality of the foregoing, the Publisher reserves the right for any reason to:
3.2.1 move any Advertisement within the Website to a place which, in the reasonable opinion of the Publisher, is comparable to the original place agreed with the Advertiser; or
3.2.2 display the Advertisement to visitors to a Comparable Website rather than the Website; or
3.2.3 alter the Advertising Period, provided that the revised Advertising Period is equivalent in length to that originally agreed with the Publisher, PROVIDED THAT in each case the Publisher notifies the Advertiser in advance of the same.
3.3 The Advertiser acknowledges and agrees that the Publisher may from time to time enter into deep linking arrangements with third parties, the effect of which may be to enable visitors to the Website or the Comparable Website to bypass pages displaying the Advertisement. The Advertiser shall incur no liability as a result of or in relation to such deep linking arrangements and shall be under no obligation to consult with or notify the Advertiser of any such deep linking arrangements.
3.4 Nothing in the Contract or these Conditions shall prevent or restrict the Publisher from displaying any adverts for products or services which compete with those of the Advertiser ("Competing Advertisement"). Without prejudice to the generality of the foregoing, the Publisher shall use reasonable endeavours to procure that the Advertisement is not displayed immediately next to a Competing Advertisement.
3.5 The Publisher shall be under no liability whatsoever to the Advertiser or any other person if it is unable to comply with the terms of the Contract for any reason beyond its reasonable control including without prejudice to the generality of the foregoing any Act of God, war, terrorism, fire, flood, failure of the internet, failure of power supply, shortage or labour or supplies, strike or any action taken by employees, agents, subcontractors or otherwise.
3.6 The Publisher shall have the right in its sole discretion to adapt, amend, vary or edit Copy so as to ensure that it complies with Paragraph 2.4. Such right shall be without prejudice to any of the Publisher's rights under these Conditions.
4. COPY SUPPLY
4.1 It is the responsibility of the Advertiser to supply the Publisher with Copy before the Copy Deadline and the Advertiser acknowledges that time is of the essence. If the Advertisement is not displayed to visitors to the Website or the Comparable Website as a result of or in relation to the Advertiser's failure to deliver suitable Copy before the Copy Deadline, the Minimum Price remains payable in full.
4.2 If the Advertiser fails to deliver suitable Copy by the Copy Deadline, the Publisher may, in its sole discretion, agree to display the Advertisement for the remainder of the Advertising Period following receipt of the Copy, in which case the number of Impressions to be generated during the Advertising Period, as specified in the Confirmation, shall be pro-rated downwards equal to the number of days the Advert is not displayed on the Website or the Comparable Website as a result of such failure.
4.3 If the Advertiser chooses to display an Advert which requires the services of a third party media rich specialist, the Advertiser shall be responsible for all costs and expenses associated with the same, unless expressly agreed to the contrary and stated on the Confirmation.
5. WARRANTIES AND INDEMNITY
5.1 The Advertiser warrants to the Publisher that:
(a) It has the power, authority and capacity to enter into the Contract with the Publisher;
(b) The Copy will not be obscene, blasphemous, libellous, defamatory, offensive, indecent, inaccurate or misleading as to price or in any
other way and will not contravene any applicable laws, rules, regulations or advertising codes (including, without limitation, all codes of
practice issued by the Advertising Standards Authority or the Committee of Advertising Practice) and will comply with the Specification;
(c) The Advertiser is the legal and beneficial owner of all intellectual property and proprietary rights in the Copy or it has the right to use and
exploit the same;
(d) The use of the Copy to create the Advertisement and the display of the Advertisement to visitors to the Website or the Comparable
Website in accordance with the Contract does not and will not infringe the intellectual property or proprietary rights of a third party; and
(e) It will comply with the terms of any contract for the sale of goods or services between the Advertiser and customers who have responded
to the Advertisement.
5.2 The Advertiser shall indemnify the Publisher in full and on demand from and against any loss (including, without limitation, economic loss, loss of profit, loss of goodwill, loss of contracts, loss of business, loss of reputation or like loss), damage, costs (including legal costs incurred in enforcing this indemnity) or expenses suffered or incurred by the Publisher or any of its Group Companies or their respective employees, agents or subcontractors directly or indirectly as a result of or in relation to: (a) any act, default or omission (including negligence) of the Advertiser or any of its employees, agents or subcontractors, (b) any breach of these Conditions by the Advertiser or any of its employees, agents or subcontractors, or (c) the reproduction, publication and/or display of the Advertisement on or through the Website or the Comparable Website in accordance with the Contract.
5.3 The Publisher makes no warranties of any kind, whether express or implied, in relation to the Website or the Comparable Website, including but not limited to implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, nor any implied warranty that the Website or the Comparable Website will meet any requirements or will be uninterrupted, timely, secure or error free, nor that defects will be corrected, nor that the Website or the Comparable Website or the server that makes them available are free from viruses or bugs or are fully functional, accurate or reliable. In addition, the Publisher makes no warranties or representations in relation to the number of people which may be expected to visit the Website or the Comparable Website.
6. CANCELLATIONS
The Contract may be cancelled by the Advertiser on written notice to the Publisher and will be effective 30 days following receipt of the same by the Publisher (the "Effective Date of Cancellation"). The Advertiser shall remain liable for the Price due in respect of all Impressions generated during the Advertising Period prior to the Effective Date of Cancellation, which shall be no less than the Minimum Price.
7. PAYMENT
7.1 The Advertiser shall pay the Publisher the Price within 30 days of the end of the Advertising Period, where the Advertising Period is less than 90commercially reasonable efforts to provide the Advertiser with details of the number of Impressions generated in the Advertising Period or 30 day period (as appropriate) ("Impression Report").
7.2 The Advertiser acknowledges and agrees that the Impression Report shall be the sole and definitive measurement of the number of Impressions generated in the period covered by the report. If the Advertiser reasonably believes that the Impression Report is inaccurate by equal to or more than 10%, the Advertiser shall notify the Publisher forthwith and the parties shall use reasonable endeavours to identify and correct the inaccuracy (if any) and agree the number of actual Impressions created during the period covered by the Impression Report. Following agreement the Advertiser shall pay the Publisher the Price due in relation to the agreed number of Impressions created in that period, plus Value Added Tax. In default of agreement, the Advertiser shall pay the Publisher the Minimum Price.
7.3 If the Advertiser fails to pay any sums due to the Purchaser by the due date, the Publisher reserves the right to cancel any Contract and/or suspend the publication of any Advertisement and to charge interest on all overdue sums at the rate of 8% per annum above the base rate of HSBC Bank plc from time to time from the due date for payment until the date payment is received in full in cash or cleared funds.
8. ERRORS
8.1 Although every effort is made to avoid errors, should they occur the Advertiser acknowledges and accepts that Publisher will not be liable to the
Advertiser for breach of Contract or in any other manner whatsoever where:
8.1.1 The error is due to inaccurate, incomplete or imprecise instructions from the Advertiser; or
8.1.2 The Copy has only been submitted verbally to the Publisher; or
8.1.3 The Copy is not supplied until after the Copy Deadline and/or the Publisher has exercised its rights under paragraph 3.6 or 4.2 above; or
8.1.4 The error concerns the colour reproduction of the Advertisement and the Advertiser has failed to supply a colour proof with the Copy in a form which is reasonably satisfactory to the Publisher, AND in such circumstances, the Advertiser remains liable in full for the Price.
8.2 The Publisher's maximum liability to the Advertiser pursuant to the Contract (including these Conditions), whether in contract, tort (including negligence), breach of statutory duty or otherwise shall, to the maximum extent permitted by law, be limited to the total Price payable by the Advertiser to the Publisher during the Advertising Period. The Publisher shall not be liable to the Advertiser for any special, indirect or consequential loss including, without limitation, economic loss or any loss of profit, loss of revenue, loss of contracts, loss of business, loss of goodwill, loss of reputation or like loss.
8.3 If the Publisher is liable to the Advertiser pursuant to these Conditions for an error of the Publisher, the Publisher shall (unless otherwise agreed) reimburse a percentage of the Price equal to the percentage loss of response which can reasonably be attributed to that error.
9. CONFLICT AND JURISDICTION
9.1 The Contract shall be governed by these Conditions, which represent the entire agreement between the parties in relation to the subject matter and supersede all prior agreements and understandings between the parties. In the event of any conflict between these Conditions and those incorporated in any form of offer or other correspondence or documentation submitted by the Advertiser, these Conditions shall prevail.
9.2 The invalidity, illegality or unenforceability of any provision of these Conditions shall not affect the continuing validity, legality and enforceability of the remainder of these Conditions.
9.3 Nothing in these Conditions shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party the agent or employee of the other for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
9.4 The Contract shall be governed by the laws of England and each party submits to the exclusive