In these terms:
'Advertisement' means the advertisement, including any tagline: (a) to be broadcast, published or printed on a single occasion, or in a series, by Radio Bath or (b) for publication on the Website as specified on the Advertisement Confirmation Order;
'Advertisement Confirmation Order' means the written confirmation provided by Buyer confirming details of Buyer's order, whether by Radio Bath order form or by email;
‘Advertiser’ means the company or person that is the distributor/owner of the product or service which is being promoted in the Advertisement;
‘Agreement’ means these Terms and Conditions, the Rate Card and the Advertisement Confirmation Order;
‘Applicable Laws’ means the Ofcom Broadcasting Code, the UK Code of Broadcast Advertising (BCAP Code) and the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), any amended or replacement codes and all other regulations and codes of practice relevant to the UK advertising industry;
'Buyer' means the person placing the order for an Advertisement with Radio Bath;
‘Fee’ means the sum payable by Buyer to Radio Bath in relation to the Advertisement;
‘Radio Bath’ means Radio Bath Limited (company no. 12885670) or the radio station Radio Bath, as the context requires;
‘Intellectual Property’ means any and all programme names and concepts, trademarks, service marks, designs, patents, unregistered or registered trademarks, business or trade names, copyright, design-rights, know-how and all other similar rights of a proprietary nature including any renewals and extensions;
‘Material’ means the content, notes and instructions provided by Buyer for use in an Advertisement;
'Rate Card' means the Radio Bath rate card in effect for the time being;
'Start Date' means the start date of the Advertisement detailed in the Advertisement Confirmation Order or (if not detailed on the Advertisement Confirmation Order) the first date that an Advertisement is broadcast or is displayed on its Website;
‘Term’ shall have the meaning set out at clause 2;
‘Website’ shall mean www.radiobath.com or any other website owned and operated by Radio Bath on which an Advertisement is published, as the case may be.
This Agreement commences on the date Buyer signs or confirms the Advertisement Confirmation Order and shall continue until the final Advertisement in the Advertisement has been broadcast or is taken down from www.radibath.com (whichever is later) (the ‘Term’).
Notwithstanding any other provision of this Agreement, the placing of an order for the broadcast of an Advertisement (and/or for the display of an Advertisement on the Website) shall amount to an acceptance of this Agreement.
Subject to the terms of this Agreement, Radio Bath shall undertake the Advertisement in accordance with the Advertisement Confirmation Order.
To the extent that Radio Bath is responsible for the development and creation of an Advertisement:
Buyer shall clearly communicate all relevant details of each Advertisement in the timeframe requested;
Buyer shall provide Radio Bath with all Material necessary for Radio Bath to develop the Advertisement (in the format and style agreed with Radio Bath in advance) at least 14 working days before the Start Date (unless otherwise agreed in writing);
Radio shall submit the draft Advertisement to Buyer for final approval (such approval not to be unreasonably withheld or delayed) prior to its scheduled broadcast or publication date;
Buyer must communicate its approval or, if it does not approve, its comments of the draft Advertisement without delay and in sufficient time for the Start Date; and
if Buyer delays providing its approval of or comments on the draft Advertisement which delays the Start Date (or such other agreed time for publication or broadcast of the Advertisement), Radio Bath shall not be held responsible for such delay and shall not have any liability to any party.
Where Buyer is responsible for the Advertisement, it shall be delivered at least 3 working days before the Start Date in the format required by Radio Bath. The Advertisement’s duration or size shall be as agreed in the Advertisement Confirmation Order and shall comply with all Applicable Laws. Where an Advertisement is not compliant and needs to be re-recorded or re designed, this shall be at Buyer’s cost.
Notwithstanding any other provision of this Agreement, Radio Bath shall not broadcast any Advertisement that:
has failed to obtain Radiocentre (previously RACC) clearance (where such clearance is required);
does not comply with any requirements or conditions explicitly imposed by the Radiocentre as a pre-condition for clearance;
is the subject of an upheld complaint by the ASA; and/or
contains claims that, in Radio Bath’s reasonable opinion, require substantiation and/or Radiocentre clearance.
Buyer represents, warrants and undertakes that:
it has obtained or will obtain clearance (and shall be responsible for all costs, royalties and expenses related to all third party rights) necessary for the exploitation of all Material provided for the purposes of the Advertisement;
It has the full right, power and authority to enter into this Agreement;
all Material used in connection with an Advertisement is accurate, complete and true;
in respect of any Material submitted for broadcast or publication which contains the name or voice or a contribution made by a living person, Buyer or the Advertiser has obtained the authority of such living person to make use of such name or voice or contribution;
the use by Radio Bath of the Material for the Advertisement will not violate or infringe any third party Intellectual Property rights;
the Material and Radio Bath’s use of them in accordance with this Agreement complies with Applicable Laws and will not constitute a libel or slander, nor be offensive, indecent, nor, if published or broadcast, would promote discrimination based on sex, race, religion, disability or age; and
in connection with this Agreement, it shall comply with all applicable laws and regulations relating to data protection, anti- bribery, anti-corruption and anti-money laundering.
If Buyer is entering into this Agreement as an agent or media buyer for its Advertiser client, Buyer represents and warrants that it is contracting with Radio Bath as a principal and is acting under the express authority of the Advertiser. Buyer will indemnify Radio Bath and shall keep Radio Bath fully and effectively indemnified from and against any claims made by Advertiser which concern Buyer not having such authorisation.
ADVERTISEMENTS NOT BROADCAST
Radio Bath may, in its sole but reasonable discretion: (i) refuse to broadcast or publish an Advertisement or use any Material, or: (ii) require an Advertisement or any Material be amended, and/or (iii) require that an Advertisement is removed the Website where:
It is necessary to comply with any legal or moral obligations placed on Radio Bath, Buyer or Advertiser;
it does not comply with the Buyer’s obligations under clause 9;
it infringing a third party's rights or Applicable Laws;
there is the potential risk of bringing Radio Bath into disrepute or harming its reputation; or
it may constitute a breach of the Radio Bath relevant brand guidelines or other advertising policies.
Radio Bath’s rejection of any Advertisement or Material pursuant to the provisions of clause 10 shall not incur any liability whether to Buyer or any third party.
Radio Bath reserves the right during the Term and for the purposes of the Advertisement to broadcast or publish any Material supplied by Buyer.
Radio Bath it does not warrant that the time, date or the quality of the Advertisement will be exactly as requested by Buyer or as set out in the Advertisement Confirmation Order. Radio Bath is not responsible for the commercial success of any Advertisement.
If, for any reason other than by reason of Advertiser default (in which case Radio Bath shall bear no liability for the following), the Advertisement: (i) is broadcast missing a material element; (ii) is broadcast containing a material error; or (iii) fails to achieve the number of spots or the level of impact or impressions specified in the Advertisement Confirmation Order, Radio Baths liability will be limited (at Radio Bath’s option) to one of the following:
a) broadcasting the missing element(s) of the Advertisement as soon as is reasonably practicable after the missing element(s) were scheduled to run and for such time as is necessary to generate a number of broadcasts of the Advertisement equal to the shortfall;
b) providing Advertiser with broadcast opportunities for the Advertisement of a value equal to the shortfall; or
c) making a pro-rata refund of, or reduction in, the Fee in relation to the missing element(s).
Radio Bath will not be liable for the loss of any Materials.
Radio Bath reserves the right to change its Rate Card at any time provided it provides Buyer with reasonable written notice.
Buyer may cancel the Advertisement or any part of it by written notice at least one calendar prior to the Start Date or the date the relevant Advertisement is due to be broadcast without incurring any liability for payment to Radio Bath other than the cost of any commercial production Radio Bath has undertaken prior to such cancellation. Any cancellation which is less than one calendar prior to the Start Date, regardless of when the Advertisement was booked, shall not affect Buyer's liability for payment of the Fee.
Radio Bath reserves its right to withdraw, or adjust at its discretion, any discount given to Buyer for an Advertisement if it is not completed because of any stop order or cancellation by Buyer.
CHARGES AND PAYMENT
Payment in full for the Advertisement shall be invoiced by Radio Bath when the Advertisement is agreed and is due in clear funds before the Start Date, or by monthly Direct Debit, entirely at the discretion of Radio Bath
Payment must be made to Radio Bath in accordance with the payment instructions on the invoice without withholding, deduction, set-off or counterclaim whatsoever.
All rates and charges payable under this Agreement are exclusive of VAT which may be payable in addition at the rate from time to time in force.
For the purposes of this Agreement, time of payment shall be of the essence.
Bath Radio shall also be entitled to charge interest on any outstanding payments at the rate of 5% per annum above the base rate of Lloyds Bank plc accruing from and including the date that payment fell due until and including the date of actual payment, both before and after judgment. All additional charges are payable within 7 days following delivery of Radio Bath’s invoice.
Any complaint, claim or query must be raised with Radio Bath in writing within 5 working days following the date of receipt by Buyer of the invoice giving rise to the complaint, claim or query. Such complaint, claim or query shall not affect the liability of Buyer for payment to Radio Buyer for charges due for that invoice and all other invoices.
All Intellectual Property which are owned or licensed by Radio Bath will at all times remain Radio Bath’s property and nothing in this Agreement shall be deemed or construed as an assignment by Radio Bath to Buyer or the Advertiser of any Intellectual Property rights owned by Radio Bath All rights arising or generated by any such Intellectual Property will accrue to and inure to the benefit of Radio Bath. The Buyer must obtain Radio Bath’s prior written consent to use any of its Intellectual Property in the future and reserves the right to charge Buyer for such use.
Buyer confirms that Radio Bath has the right to use such of Intellectual Property of the Buyer as are necessary to fulfil the Advertising Confirmation Order and that Radio Bath has a perpetual right to use the Material for Radio Bath’s internal business uses and to promote its advertising services to other potential advertisers.
All Intellectual Property belonging to Advertiser shall at all times remain vested in the Advertiser and nothing in this Agreement shall be construed as an assignment by the Advertiser of any Intellectual Property rights owned by the Advertiser and all goodwill and rights arising in or generated by any such intellectual property will accrue to and inure to the benefit of the Advertiser.
Radio Bath may, in its absolute discretion, conduct research relating to the Advertisement and Buyer acknowledges that Radio Bath may use any findings in relation to future advertising. Radio Bath shall be entitled to refer to its association with the Advertisement to promote Radio Baths advertising and business generally.
LIMITATION OF LIABILITY
Radio Bath will not be responsible for any errors (or the repetition of an error in an Advertisement in a series, print or Website publication) in Advertisements approved by Buyer unless it is notified immediately in writing to Radio Bath and, following such notification, Radio Bath fails to remove the Advertisement as soon as reasonably practicable.
If the error was caused by Radio Bath, then Radio Bath’s liability shall be limited to either:
crediting Buyer a proportion of the total charge for the Advertisement calculated on a pro-rata basis for the number of broadcasts containing the error or for the number of days in which the Advertisement was live on radiobath.com or days live on public display, or
broadcasting or displaying a corrected Advertisement or correcting the Advertisement on radiobath.com or without charge.
Radio Bath shall not be liable to Buyer for the failure, corruption, interruption, downtime, virus or malfunction of the Website or Radio Bath broadcast output or destruction or damage to static posters.
The Buyer will indemnify Radio Bath and shall keep Radio Bath fully and effectively indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising directly or reasonably foreseeable as a result of any breach or non-performance of any of the representations, warranties or other terms of this Agreement.
Nothing in this Agreement limits or excludes the liability of a party for death or personal injury resulting from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
A party shall not be liable to the other for loss of profits, business, goodwill and/or similar losses or loss of anticipated savings, loss off goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
Radio Bath’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 this Agreement shall be limited to Fee paid for the Advertisement concerned.
Radio Bath may terminate this Agreement at any time and without reason by serving one calendar month’s written notice to Buyer.
Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, if a party:
commits a material breach of this Agreement which is not capable of remedy or, if capable of being remedied, is not remedied within 15 days of the non-breaching party giving written notice to the other giving details of the breach, requiring its remedy;
suspends, threatens to suspend, admits inability or is deemed unable to make payment of its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a solvent amalgamation of the company with one or more other companies or the solvent reconstruction of that party;
files a petition, gives a notice, passes a resolution, or makes an order, for or in connection with its winding up other than for the sole purpose of a solvent amalgamation with one or more other companies or for solvent reconstruction;
makes an application to court or an order is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the party;
has a receiver is appointed over its assets;
has a creditor who attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
any event occurs, in any jurisdiction, or to any Buyer or Advertiser who is an individual to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause; or
suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
(A) in the case of Buyer, Radio Bath shall be entitled: to suspend the Advertisement from broadcast or display or to remove Advertisements from any of its websites until the breach is remedied; or to terminate this Agreement without liability to Buyer immediately by giving written notice to Buyer (without prejudice to any remedy available to Radio Bath for any antecedent breach); and in any such event, any balance of the price which is outstanding shall become due and payable by Buyer immediately; and (B) in the case of Radio Bath Buyer may terminate this Agreement without liability to Radio Bath immediately by giving written notice to Radio Bath.
Termination or expiry of this Agreement shall not affect a party’s accrued rights and obligations as at the date of termination. Clauses 25, 27, 29, 32-35 and 38 shall survive termination or expiration of this Agreement.
The Buyer acknowledges and consents to details of Buyer's name, address, payment record and if Buyer is an individual to personal data (as defined under the Data Protection Act 1998) being processed by Radio Bath and submitted to a credit reference agency (details of which shall be available upon request) for the purposes of obtaining a credit report. If Buyers are partners in a partnership or individuals trading as an unincorporated business, this clause applies to the partners in such partnership and the proprietors of such unincorporated business.
Any personal data transferred to Buyer by Radio Bath pursuant to its obligations under this Agreement shall be Radio Bath’s property and Buyer warrants that it shall, comply with the United Kingdom Data Protection Act in respect of that data.
The terms of this Agreement (but not its existence) and any other information notified by one party to the other shall be kept strictly confidential at all times unless required by law, court order of a competent jurisdiction, in which event the disclosing party shall notify the other party as promptly as possible (and, if at all possible, prior to the making of any such disclosure) and shall use its reasonable commercial endeavours to ensure that such information continues to be treated as confidential. Notwithstanding the foregoing, the parties shall be entitled to disclose any such confidential information on a “need-to-know” basis under the same obligations of confidentiality as in this Agreement, to its professional advisors, employees, officers, contractors and agents.
Radio Bath shall have no liability to Advertiser or Buyer if Radio Bathis prevented, hindered or delayed in carrying out any of Radio Bath’s obligations under the Agreement by any act or thing beyond Radio Bath’s control or any other act or event that affects or may affect Radio Bath’s programming or Advertisements (including any law or regulatory order, power failure, breakdown or failure of software or machinery, interruption of broadcast, accident, act of God, storm, fire or flood, death of royalty or other public figure, terrorist action or war, failure of sub-contractors, suppliers or labour dispute) (a “Force Majeure Event”).
If the Force Majeure Event continues for more than one month, either party may terminate the Agreement with immediate effect by written notice. Any such termination shall be without prejudice to Radio Bath’s right to be paid any outstanding Fees up to the date of termination and all production costs.
No waiver or indulgence by Radio Bath shall be effective save in relation to the matter in respect of which it was specifically given.
The Buyer may not assign this Agreement in whole or in part.
Any notice under this Agreement shall be in writing and sent by recorded delivery post or by-hand delivery at the last known address from which one party has communicated with the other in connection with the Agreement. In the case of the service of a notice by Buyer upon us, such notice shall be addressed for the urgent attention of the Managing Director or Financial Director
To the extent permitted by law, the invalidity, illegality, or unenforceability of any provision in this Agreement does not affect or impair the continuation in force of the remainder of the provision or Agreement.
Radio Bath reserve the right to vary its Advertising terms and conditions from time to time, provided that the Terms and Conditions in force at the start date of the Advertisement shall apply to that Advertisement.
This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that in entering into this Agreement it has not relied on any statement, representation, misrepresentation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
Any failure or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
A person who is not a party to this Agreement shall have no rights to enforce any of its terms whether under the Contracts (Rights of Thirds Parties) Act 1999, or otherwise.
This Agreement shall be construed under and governed by the law of England and the parties submit to the exclusive jurisdiction of the English courts.