TERMS AND CONDITIONS OF BUSINESS
In these Conditions, the following definitions apply:
Advertisement: the advertisement provided by the Advertiser which the Advertiser intends to be published in a Publication by the Publisher.
Advertiser: the person, firm or company which places an Order with the Publishers and shall include successors in title and assignees, any appointed Agency and any such Agency’s successors in title and assignees.
Agency: any agency or agent appointed by, and placing Orders on behalf of, a person, firm or company.
Commencement Date: The date of the Order Form or alternatively if earlier the date that the Advertiser complies with Clause 3.1
Conditions: these terms and conditions as amended from time to time in accordance with clause 2.4
Contract: the contract between the Publisher and the Advertiser for the supply of Goods in accordance with these Conditions.
Copy: any advertising materials submitted to the Publisher by the Advertiser.
Cost of the Order: the price to be paid by the Advertiser to the Publisher for the Advertisement.
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Editorials: articles in the Guide giving more information about the local area and some of the advertisers featured in the Guide.
Final Copy Date: the date agreed between the Publisher and Advertiser and will be the latest date for the final version of the Advertisement.
Force Majeure Event: an event beyond the reasonable control of the parties including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Publishers or subcontractors.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Guide: the Publisher’s Regional or City Guides.
Intellectual Property: any rights granted to creators and owners of works that are the result of human intellectual creativity (including design and layout) and which either subsist or will subsist now or in the future in any part of the world.
Order: the contract between the Publisher and the Advertiser on the basis of the detail on the Order Form or written notification of the order and these Terms and Conditions of Business.
Order Form: the Published Standard pro forma order document completed by the publisher and provided to the Advertiser containing the proposal or such other written notification as the Publisher may in its absolute discretion accept.
Printing Deadline: the date the Publisher sends the Guide to be printed.
Publication: any publication published by the Publisher which will include both printed and electronic versions (such as a mobile phone or tablet app.
Publisher: Kingfisher Media Limited (company number 05942151) whose registered office is 246 Park View, Whitley Bay, Tyne And Wear, NE26 3QX, its agents and employees.
In these Conditions, the following statements shall apply:
(a) a ‘person’ includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
(b) a reference to a ‘party’ includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to ‘writing’ or ‘written’ includes e-mails, but not faxes;
(f) a reference to ‘day’ means a calendar day and not a business day.
2.1 These Terms and Conditions apply to any Order placed by an Advertiser with the Publisher for publication of an Advertisement in a Publication.
2.2 By placing an Order, the Advertiser agrees these Terms and Conditions.
2.3 Subject to the provisions in clause 2.4, these Terms and Conditions constitutes the entire agreement between the parties and it shall apply to the exclusion of any other terms that the Advertiser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Advertiser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Publisher which is not set out in the Order.
2.4 The terms and conditions set out in this document shall only be varied with the written agreement of both the Publisher and Advertiser.
2.5 The Order shall only be deemed to be accepted when the Publisher accepts the order at which point and on which date the Contract shall come into existence.
3 ORDER AND FEES:
3.1 Any Order placed by an Advertiser or the Advertiser’s Agent must be submitted either on the Publisher’s official order form or in writing to the Publisher by the Advertiser notifying that the proposal is acceptable
3.2 Persons signing the Order warrant that they have the authority to do so from the person, firm or company on whose behalf they are acting or purporting to act, and they must provide full contact details (including, name and registered address) otherwise they agree that they will be personally liable for the Publisher’s fees.
3.3 If an Agency places the Order, it represents and warrants that it is authorised to enter into the agreement on behalf of its client and that both the Agency and its client will be jointly and severally liable for the Publisher’s fees as set out in these terms and conditions of business.
3.4 The price quoted for display advertisements includes the creation of rough design work through to and including finished artwork (not including the taking of photographs, the design of corporate logo styles, tint laying, or colour separations) and the submission of a proof for approval by the Advertiser prior to publication. If the Advertiser rejects more than two proofs prepared by the Publisher, then the Publisher reserves the right to make additional charges of £30 plus VAT for every subsequent proof.
4 ADVERTISEMENT DESIGN:
4.1 If the Publisher has contributed to an Advertisement in a creative capacity (including by way of designing, reworking, amending or similar), then any resulting copyright or resulting Intellectual Property shall vest in the Publisher.
4.2 The Advertiser agrees that the Publisher has the right and sole discretion and without any liability to the Advertiser to:
(a) make any alteration to Advertisements it considers necessary (including amendments to the Advertisement’s artwork, positioning or dimensions) to ensure the Advertisement meets the Publisher’s requirements in relation to publication deadlines, technical specifications, limitations of the Publisher, to ensure compliance with all applicable laws or to prevent the infringement of any third party’s Intellectual Property rights;
(b) decline to publish any Advertisement without giving a reason.
5 ADVERTISER’S MATERIALS:
5.1 The Advertiser agrees to arrange for the delivery and where appropriate the return of these materials to and from the Publisher at its own expense, including the appropriate transport and insurance costs.
5.2 The Publisher will take all reasonable precautions to prevent damage to any such material, but the Publisher shall not be liable for any loss, damage or delay in delivery in relation to these materials howsoever caused.
5.3 The Publisher will destroy or permanently delete (if stored in an electronic format) any such materials in its possession six months from the Final Copy Date without further notice to the Advertiser unless the Advertiser and Publisher agree in writing to extend this time period.
6.1 Unless otherwise agreed in writing with the Publisher, the Advertiser acknowledges that the Guide and Editorial may carry advertisements or endorsements from any organisation including the Advertiser’s competitors or which offer similar goods or services to the Advertiser.
7.1 The Advertiser shall supply the Publisher with copy details for the Advertisement, finished artwork or entry on or before the Final Copy Date, otherwise the Publisher will print the Advertiser’s name, address, telephone number, and website details as set out in the Order, or at the Publisher’s absolute discretion omit the Advertisement in which case the Advertiser shall remain liable for the full space charges.
7.2 It is the responsibility of the Advertiser to check the proof and notify the Publisher of any errors within seven days of receiving the proof.
7.3 The Advertiser agrees that if the submitted proof has not been returned to the Publisher within seven days of submission, either signed as approved, or accompanied by a letter signifying rejection of the proof, then the Publisher will be entitled to assume that the proof is correct and it will be published accordingly without any further liability to the Publisher.
8.1 The Publisher reserves the right, without incurring any liability, in respect of any loss or damage sustained by the Advertiser to cancel any Order, or part thereof, by giving reasonable notice to the Advertise. If the Publisher cancels the agreement before the Guide is printed, or otherwise in respect of any error or omission by the Publisher, then the Advertiser shall be entitled to a refund or adjustment (with the Publisher deems reasonable) to the charge for the Advert.
8.2 The Publisher also reserves the right to omit or refuse to publish, or to change the position of or suspend any Advertisement or any part thereof or series of Advertisements notwithstanding the fact that the Advertisement has been accepted for publication, without incurring any liability in respect to any loss or damage sustained by the Advertiser.
8.3 Where any subsequent Orders are placed by the Advertiser with the Publisher and the Publisher’s rates have changed, charges in relation to any subsequent Order(s) placed by the Advertiser shall be at the Publisher’s current rate.
8.4 If the Advertiser wishes to cancel either all or part of an Order then the Advertiser must notify the Publisher in writing. Cancellation will only take effect when the Publisher confirms the cancellation to the Advertiser in writing and will be subject to the following charges:
(a) Subject to clause (b), cancellation by the Advertiser within seven calendar days of the Commencement Date will incur a charge of 25% of the cost of the Order in lieu of any work undertaken by the Publisher with regard to the Advertisement; otherwise the full amount agreed under the Contract will become due.
(b) Orders placed less than seven calendar days from the Print Deadline cannot be cancelled.
9.1 The Publisher commissions feature writers who are independent of the Publisher and who prepare in good faith an Editorial for each new edition of the Guide. The Advertiser agrees that:
(a) the Editorial may refer to companies which could be in competition with the Advertiser;
(b) the Publisher does not make any warranties that the Advertiser will be mentioned in the Guide;
(c) the Guide and Editorial are prepared in advance and although the Publisher takes reasonable steps to ensure they are up-to-date and accurate, the Publisher does not make any warranties as to their content.
10.1 The Publisher will make reasonable efforts to ensure that the Guides will be made available in the hotels listed in the media pack, copies of which are available on request. The Publisher will not accept liability for any Guides which are not delivered to the hotels by the courier company or are not distributed by the hotels.
11 PUBLICATION DATES:
11.1 When the Advertiser places the Order, the Publisher will give a date for the publication of the next Guide, which shall be an estimate only and the Advertiser agrees that time shall not be of the essence relating to such dates.
12 CHARGES AND PAYMENT:
12.1 The price is set out in the Order and the Publisher reserves the right to increase the price due to any factor beyond the control of the Publisher (including taxes and duties), any request by the Advertiser to make changes to the Order, any delay caused by any instructions of the Advertiser or failure of the Advertiser to give the Publisher adequate or accurate information or instructions.
12.2 The Publisher shall invoice the Advertiser on or at any time after the Final Copy Date and the Advertiser shall pay each invoice submitted by the Publisher:
(a) within 30 days of the date of the invoice unless agreed otherwise in writing by the Publisher’s financial controller or managing director;
(b) in full and in cleared funds to a bank account nominated in writing by the Publisher; and
(c) time for payment shall be of the essence of the Contract.
12.3 All amounts payable are exclusive of amounts in respect of value added tax chargeable from time to time (VAT).
12.4 If the Advertiser fails to make any payment due to the Publisher under the Contract by the due date for payment, then the Advertiser shall pay interest on the overdue amount at the rate of 3% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Advertiser shall pay the interest together with the overdue amount.
12.5 The Advertiser shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Publisher may, without limiting its other rights or remedies, set off any amount owing to it by the Advertiser against any amount payable by the Publisher to the Advertiser.
13.1 The Advertiser warrants to the Publisher that it is the owner or otherwise authorised user of any Intellectual Rights containing or otherwise affecting, the Advert and shall indemnify from and against all proceedings, claims, demands and any other costs and expenses made or pursued against the Publisher in connection with the Advert, to include, but without prejudice to the generality, any such proceedings, claims, demands or costs and expenses made in respect of Intellectual Property rights, defamation, breach of any statutory enactment, or regulations made there under, or any other matter whatsoever.
13.2 The Advertiser warrants that the goods or services advertised complies with all statutory and common law requirements applicable thereto from time to time and the Advertiser shall indemnify the Publisher against any costs, claims, demands and expenses in relation or respect of any infringement thereof.
14 LIMITATION OF LIABILITY:
14.1 Nothing in these Conditions shall limit or exclude the Publisher’s liability to the Advertiser for death or personal injury caused by the Publisher’s negligence, or the negligence of the Publisher’s employees, agents or subcontractors or for fraud or fraudulent misrepresentation;
14.2 The Publisher’s total liability to the Advertiser in respect of all other losses arising from with the Contract, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the amount the Advertiser paid the Publisher under the original Contract.
14.3 The clauses in this section shall continue to have effect once the Contract has terminated.
15 LIABILITY FOR FORCE MAJEURE EVENTS:
15.1 The Publisher shall not be liable to the Advertiser because of any delay or failure to perform the Publisher’s obligations under this Contract because of a Force Majeure Event.
15.2 If the Force Majeure Event prevents the Publisher from providing any of the services for more than six weeks, the Publisher will, without limiting the Publisher’s other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Advertiser and the Advertiser will only be liable to the Publisher for the amount of work the Publisher had done before the Event Beyond Our Control occurred.
16 USE OF PERSONAL INFORMATION:
16.1 The Publisher will use the personal information the Advertiser gives to provide the services, to process the Advertiser’s payment for such Goods and services, and unless the Advertiser notifies the Publisher in writing, for marketing purposes.
16.2 The Advertiser agrees that the Publisher may pass such personal information to credit reference agencies who may keep a record of any search that they do.
16.3 Subject to clause 17.3, the Publisher will not give the Advertiser’s personal data to any other party except where required to do so by law.
17 OTHER IMPORTANT TERMS:
17.1 The Publisher may transfer its rights and obligations under these terms to another organisation but the Publisher will notify the Advertiser in writing if this happens. This transfer will not affect the Advertiser’s rights or the Publisher’s obligations under these Terms.
17.2 The Advertiser may only transfer its rights and obligations under these Terms to another person if the Publisher agrees so in writing.
17.3 If the Publisher needs to contact the Advertiser, then the Publisher will write to the address the Advertiser gave in the order. The Publisher will deliver such correspondence personally, by first class post, commercial courier, or if the Advertiser has given the Publisher these details, by e-mail. If the Advertiser wishes to contact the Publisher, then the Advertiser can find the Publisher’s contact details on the Order and on the Publisher’s website. Delivery of correspondence by post or commercial courier will be deemed to have been received by the other party by 9.00am on the second day after posting.
17.4 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any clause is unlawful, then the remaining paragraphs will remain in full force and effect.
17.5 If the Publisher fails to insist that the Advertiser perform any of the Advertiser’s obligations under these Terms, or if the Publisher does not enforce the Publisher’s rights against the Advertiser, or if the Publisher delays in doing so, then this does not mean that the Publisher has waived its rights against the Advertiser or that the Advertiser does not have to comply with those obligations. If the Publisher does waive a default by the Advertiser, the Publisher will only does so in writing, and that will not mean that the Publisher will automatically waive any later default by the Advertiser.
17.6 Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.7 This Contract is between the Advertiser and the Publisher. No-one else shall have the right to enforce any of its terms.
17.8 This Contract is governed by English law. Both parties agree to submit to the non-exclusive jurisdiction of the English courts.
Except as set out in these Conditions, no variation of the Contract, Order, Order Form or Publication shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20 GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
21 NO AGENCY
Nothing in the Contract or any subsequent changes to the Contract shall be read to as construe that either party shall be an agent of the other.
22 DATA PROTECTION
22.1Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace either party’s obligations under the Data Protection Legislation.
22.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Publisher is the data controller and data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
24.3 Without prejudice to the generality of clause 24.1 the Advertiser will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Publisher for the duration and purposes of the Contract.
22.4 Without prejudice to the generality of clause 22.1, the Publisher shall, in relation to any Personal Data processed in connection with the performance by the Publisher of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Advertiser unless the Publisher is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Publisher to process Personal Data (Applicable Data Processing Laws). Where the Publisher is relying on laws of a member of the European Union or European Union law as the basis processing Personal Data, the Publisher shall promptly notify the Advertiser of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Publisher from so notifying the Advertiser.
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Advertiser, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Advertiser has been obtained and the following conditions are fulfilled:
(i) The Advertiser or the Publisher has provided appropriate safeguards in relation to the transfer;
(ii)the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii)the Publisher complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv)the Publisher complies with reasonable instructions notified to it in advance by the Advertiser with respect to the processing of the Personal Data;
(v)assist the Advertiser, at the Advertiser’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi)notify the Advertiser without undue delay on becoming aware of a Personal Data breach;
(vii)at the written direction of the Advertiser, delete or return Personal Data and copies thereof to the Advertiser on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
(viii)maintain complete and accurate records and information to demonstrate its compliance with this clause 22.
22.5 The Publisher will control and process all that information that is necessary to give effect to the Publication. This information may include but is not limited to:
(a) Advertiser’s name including employee details and contact details;
(b) Advertiser’s business type and nature of business;
(c) the Advertiser’s email address and other contact information and any information required for the completion of the Publication; and
(d) any other information that is disclosed by the Advertiser during the Contract.
22.6 any use of any Personal Data or any information provided by the Advertiser and used by the Publisher is seen and acknowledged as a legitimate expectation, by the Advertiser, as part of the Contract.
22.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 22 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
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