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By placing (verbally or in writing) an advertisement or notice or insert (including any text hyper-link, html code, button, banner, video or other graphic or text file) (the "Advert") for publication in the title or titles, or in or on the websites, which are specified in the order form or invoice (the "Product") by or on behalf of the publisher or publishers of the relevant Product (a list of which can be found at www.trinitymirrorpublishing.co.uk), or such other group company of Trinity Mirror plc as it may designate in writing from time to time, ("we", "us" or "our", which expressions shall include our group companies, successors, assignees, subcontractors and agents), the advertiser ("you", which expression shall include your successors, assignees, executors, personal representatives and anyone upon whose behalf you are acting) agree to be bound by the following terms and conditions ("T&Cs"):
1. We will endeavour to publish your Advert in the Product on the dates(s) specified by you and to meet your requirements, but we do not guarantee the publication or insertion of any Advert. We reserve the right to omit, delay, suspend, withdraw or hold over publication of the whole or any part of an Advert without notice at our absolute discretion and to publish any Adverts so omitted or held over in a subsequent publication of the Product or on a later date(s). We will endeavour to give you notice where reasonably practicable. We reserve the right to determine the position of the Advert unless a special position at a premium has been agreed in writing by us.
2. We further reserve the right to reject any Advert at our sole discretion or to alter any Advert without consulting you in order that such Advert might conform to our standards of decency, taste and other relevant matters set out in any relevant code of practice, our self-imposed policies or standards or any other applicable laws or mandatory rules. We may print your name in the Advert where we deem it appropriate. If we reject and cancel an Advert then we shall notify you and the relevant charges payable by you in respect of such cancelled Advert shall be deemed to be cancelled.
3. You warrant, represent and undertake that any Adverts placed for publication and any materials supplied to us for the purposes of producing any Advert and any materials which viewers of any Advert can link to or obtain through any Advert (and its use, reproduction, distribution, transmission or display): (i) are and shall be legal, decent, honest and truthful; (ii) are not defamatory; (iii) comply with all applicable laws, codes, standards and regulations including (without limitation) the Consumer Protection from Unfair Trading Regulations 2008, Consumer Protection (Distance Selling) Regulations 2000, Business Protection from Misleading Marketing Regulations 2008, Consumer Credit Acts 1974 and 2006, Electronic Commerce (EC Directive) Regulations 2002, Data Protection Act 1998, Equality Act 2010 and UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing, as any of the same may be amended, supplemented, replaced or reenacted from time to time; (iv) do not infringe (and publication by or on behalf of us shall not infringe) the intellectual property rights, moral rights, rights or publicity, personality or privacy or any other rights of any third party and that all necessary permissions, consents and licences have been obtained in respect of publication of the Advert worldwide, including (without limitation) in respect of any representations of individuals or words attributed to them and from any entities whose business or products are being advertised; (v) do not contain, promote or incite viruses or spyware, or cracking or hacking activities, or content or conduct which is obscene, abusive, violent, bigoted, hate-oriented or otherwise inappropriate; and (vi) may be recorded, reproduced, amended, translated, adapted, re-formatted, published, transmitted, stored, distributed and used in any other way by or on behalf of us for the purpose of including such Adverts in our publications and/or websites in accordance with these T&Cs, may be republished in any other media, print, digital or electronic, whether now known or developed in future, at our discretion and may be held in and made available via our archives in perpetuity following publication.
4. Adverts booked in UK-based Products may also appear in other territories, including in e-editions of the Products which are available globally. You hereby grant to us, and warrant, represent and undertake that you are entitled to grant to us, a non-exclusive, worldwide, royalty-free licence to publish the Advert(s) in our publications and/ or websites and to maintain and make available an archive of such Advert(s) in perpetuity and to do all other things ancillary for the purpose of performing our obligations and utilising our rights hereunder, including without limitation the right to record, reproduce, amend, translate, adapt, re-format, publish, transmit, store, distribute and use the Adverts in any and all media without restriction, whether now known or developed in future and to sub-license third parties to do the same. Adverts booked in UK editions may also appear in Northern Ireland.
7. The intellectual property rights (including, without limitation, copyright) and all other proprietary rights subsisting in any artwork, copy, files, computer programs and other material which is created, developed, contributed to and/or reworked by or on behalf of us shall vest solely in us in perpetuity and you confirm that you have no right, title or interest in or to such materials. Any materials produced by us for you may not be reproduced by or on behalf of you without our prior written consent.
8. You shall supply us with high quality copies of, or content or creatives required for, all Adverts for publication in such format as may be requested by us and shall conform to publication deadlines, technical requirements and other specifications and limitations notified to you by us from time to time. Failure to do so will mean that, at our discretion, existing content or creatives may be repeated or the Advert omitted if no repeat content or creative is available. In either case, the full cost of the Advert remains payable by you.
9. All copy, artwork, film, discs and other property ("your property") delivered to us by or on behalf of you is held by us at your risk and you are solely responsible for insuring your property against loss or damage from whatever cause. We shall not be liable to you for any loss or damage to your property howsoever caused. You shall ensure that electronic files sent to us shall have been produced using properly licensed software and shall be free from computer viruses. We reserve the right to destroy your property which has been in our custody for at least six months (or, if later, six months from the date of last publication) without notice to you, unless you have given express written, reasonable instructions to the contrary to be implemented at your cost.
10. In relation to Adverts placed on website Products, we shall measure the performance of the Advert by reference to the number of impressions and clicks on the Advert and shall make this information available to you in the manner agreed from time to time and you undertake to keep such information confidential at all times. For the avoidance of doubt, our measure of the performance of the Advert is definitive and supersedes any other measurement obtained by you. You will monitor the performance of the Advert during any campaign by reference to the information provided using our measures and will report to us if there is any discrepancy between our measures and any other measure obtained by you within two weeks of being notified of our measure. You waive any right to make any claim based on any discrepancy which is not reported within that timeframe. We will review any discrepancy which is reported within such time frame and will make a reasonable effort to negotiate a reconciliation for a confirmed discrepancy, but we will not credit more than ten (10) per cent of the total number of impressions or clicks. We maintain a system for measuring the performance of the Advert, but we cannot guarantee that our measures will be foolproof and we shall not be liable for any fraud or manipulation by any viewer or third party. We reserve the right to use, including for our own business purposes, the information which we obtain in performing our obligations under these T&Cs, including the performance measures but, unless otherwise agreed with you, we undertake not to disclose information relating to the performance of the Advert in a manner which identifies you or the specific Advert.
11. You are responsible for checking that the first insertion in a series of Adverts is published in accordance with your wishes and complies with clauses 3, 4 and 5 of these T&Cs. You must notify us immediately of any error, misprint, inaccuracy, omission or breach. We shall have no liability for any error, misprint, inaccuracy, omission or breach by us in any subsequent publication of the Advert unless you had so notified us and we did not take reasonable steps to correct it. If any error, misprint, inaccuracy, delay or omission in the publication of the whole or any part of an Advert is caused by us and materially detracts (in our opinion) from the content of the Advert, we may rectify it by either re-inserting the whole or affected part of the Advert or making a reasonable refund or adjustment to the cost, provided we are notified within 7 days of the first publication. You expressly agree that our total liability to you for any error, misprint, inaccuracy, delay or omission in respect of an Advert shall be limited to the price paid by you for the publication of the affected Advert (which shall be limited to the price paid for the first publication of an Advert in a series, unless we were notified as above and failed to take such steps to correct it) or to us bearing the cost of publishing a further or corrective Advert (to be elected at our sole discretion) in the Product.
12. Subject to clause 11, we shall not be liable for any losses, expenses or damages, including loss of revenue, profits or goodwill, damage to software, misuse of, or damage to, loss or destruction of data, occasioned to or sustained by you or any third party in connection with these T&Cs, including (without limitation) arising from the noninsertion, error, misprint, inaccuracy or omission in or alteration of any Advert, delays in the printing or publishing any Advert or for the non-publication or non-distribution of any Product in which an Advert is scheduled to appear, whether due to our negligence or otherwise. We shall not be liable for any claim in respect of any non-insertion, error, misprint, inaccuracy, delay or omission of an Advert or any other matter in connection with these T&Cs unless (a) we are notified of the details of the event giving rise to the claim arising within 7 days of such event occurring and (b) any claim is made within three months of such event occurring. We specifically exclude any implied term, condition, representation or warranty of satisfactory quality or fitness for a particular purpose. In relation to Adverts placed on website Products, you acknowledge that computer and telecommunications systems may be subject to periods of downtime and that we shall not be liable for any unavailability of any website from time to time, but we shall make reasonable efforts to minimise any downtime which is within our direct control. If downtime which is within our direct control runs for an uninterrupted period of 24 hours or more and materially impacts on our ability to publish the Advert on the Product in accordance with these T&Cs then the time of publication shall be extended to reflect such period of downtime which shall be your sole remedy for any such downtime. Nothing in these T&Cs shall operate to exclude or limit our liability for death or personal injury caused by our negligence nor our liability for fraud or any other liability which cannot be excluded or limited by law.
13. We are not obliged to stop or cancel or withdraw any Adverts unless we receive written notice prior to a proposed publication date of such Advert of not less than 7 clear days or, in respect of any special position Adverts or positions or spaces which are chargeable at premium rates, of not less than 28 clear days.
14. Advertising space shall be charged at our then prevailing rates, which shall be notified to you at the time of placing the Advert and which shall be the rate for full page, half page or quarter page adverts, as applicable to the Advert. All quoted prices are subject to VAT. Where shrinkage occurs, the Advert shall be charged to the nearest full centimetre, save in respect of full-page Adverts where the price for the full-page shall be charged. All Adverts booked by reference to specific dimensions will be subject to a permitted variation in size of 2.5%. All Adverts booked by reference to a specified number of impressions as shown on the insertion order issued by us shall be subject to a permitted shortfall in impressions of 5%. If such shortfall in impressions is greater 5%, based on our measures in accordance with these T&Cs, then your sole remedy shall be, at our discretion, to (i) extend the length of the campaign for such Advert(s); (ii) position and place the Advert(s) in such Products at a future date(s); or (iii) to make such other adjustment to the dates, positioning or placement of the Advert(s) as we may agree with you.
15. All pricing or other queries must be notified to us (by contacting the Accounts Department using the contact details shown on the invoice) within 28 days of the date of the invoice or publication of the Advert (whichever is earlier). The existence of any query shall not affect the due date for payment but interest shall not accrue in respect of any amount which is being disputed in good faith.
16. Payment in full in cleared funds will be required prior to the first publication date of the Advert unless we have agreed to allow you a credit period in which case payment will be due by the payment date specified on the invoice or, if not so specified, within 14 days from the date of the invoice or as otherwise notified by us to you in writing. Amounts received by us shall be applied against amounts due for Adverts in order of publication or in such other order as we may decide in our sole discretion. If you fail to pay all amounts due by the due date for payment (or otherwise fail to comply with these T&Cs) then you shall lose your entitlement to any discount which may apply. We may charge interest on overdue payments at a rate of 3% per annum above the Barclays Bank plc (or another bank nominated by us from time to time) base rate from time to time from the due date for payment until payment in full and we reserve the right to reclaim any discounts, cashback or commissions (current or retrospective). Amounts due hereunder may be apportioned by us amongst our group companies by notice to you in writing. Payment obligations may be discharged by making payment to Trinity Mirror Publishing Limited as agent. Accounts may be paid by electronic bank transfer or by credit or debit card or by sending a cheque to: Trinity Mirror Publishing Limited, PO Box 2003, 39 Old Hall Street, Liverpool, L69 3FR. The remittance advice must accompany all forms of payment. Without prejudice to any other rights or remedies available to us, we shall be entitled (but not obliged) at any time without notice to you to set off any liability of you to us or any of our group companies against any liability of us or any of our group companies to you under these T&Cs or otherwise.
17. If any amount due by you to us, under these T&Cs or otherwise, has not been paid by its due date then we shall be entitled to suspend the publication of any Advert placed by you or any subsequent publication in a series of Adverts. If you fail to pay such overdue amounts in full within five business days of being notified of such overdue amounts by us or you have become unable to pay your debts as they fall due or you have become insolvent or entered into administration then we shall be entitled to cancel any future publication of an Advert or a series of Adverts and all amounts which you would have become liable to pay for such future publication(s) of such Advert(s) shall become immediately due and payable.
18. We reserve the right from time to time to alter these T&Cs by notice. We shall endeavour to give you notice if you are likely to be affected by such changes. No variation of any of these T&Cs by you shall have any effect unless expressly agreed by us in writing. Any terms stipulated by you on order forms, in correspondence or elsewhere, including your standard terms of purchase, which purport to apply to the subject matter of these T&Cs are expressly excluded and shall be void in their entirety. Advertising agencies shall, unless the context expressly requires otherwise, shall be treated as acting as principal.
19. If a provision of these T&Cs is found to be illegal, invalid or unenforceable, then to the extent it is illegal, invalid or unenforceable, that provision will be given no effect and will be treated as though it were not included in these T&Cs and/or severed from them, but the validity or enforceability of the remaining T&Cs will not be affected. Should any exclusion or limitation of our liability be found to be illegal, invalid or unenforceable, our liability in respect of any breach of these T&Cs (other than in respect of fraud, personal injury or death where it cannot be limited by law) shall be limited to the charges applicable to the placing of the Advert in question.
20. Failure to exercise, or a delay in exercising, a right or remedy provided by these T&Cs or by law does not constitute a waiver or abandonment of the right or remedy. A waiver of a breach of these T&Cs does not constitute a waiver of a subsequent or prior breach of this Agreement.
21. We may carry out a credit search at a credit search referencing agency which will record the fact a search has been made. We will only use the information from such searches to make credit-granting decisions and, if necessary, for fraud prevention and/or tracing debtors. We may disclose your details to police, trading standards or other relevant authorities. We shall use the information you provide for administration and analysis. We may share this information with our group companies and carefully selected third parties for such purposes.
22. You expressly agree that we may assign, novate or otherwise transfer these T&Cs (or any debt due hereunder) in whole or in part to any group company or third party from time to time and that, if required, you expressly acknowledge that an invoice would constitute effective notice. You agree to do or execute or procure the doing or execution of such further acts, deeds, documents or things as may be reasonably required to give full effect to these T&Cs, including executing a novation agreement on such terms as we may reasonably request in order to transfer these T&Cs to another group company of Trinity Mirror plc. You may not assign any rights or obligations under these T&Cs.
23. A person (other than a group company of Trinity Mirror plc) who is not a party to these T&Cs shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these T&Cs but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
24. These T&Cs, together with any related insertion order, order form or invoice provided by us, constitute the entire agreement between us and you and supersede all previous understandings and agreements (whether written, oral or implied) between us and you in relation to the placement of the Advert. You acknowledge and agree that, in placing an Advert for publication, you have not relied and shall not rely on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these T&Cs or any related insertion order, order form or invoice agreed by us.
25. These T&Cs, the jurisdiction clause contained in them, any agreement to which they apply and all non-contractual obligations arising out of them, are governed by, construed and take effect in accordance with English law. In respect of any claim, dispute or matter of difference which may arise in any way out of or in connection with these T&Cs or the legal relationships established by them, the courts of England shall have (a) exclusive jurisdiction to settle any actions raised by you; and (b) non-exclusive jurisdiction to settle any actions raised by us or any of our group companies. Nothing in this clause shall limit our right, or the right of any of our group companies, to take proceedings against you in any other court of competent jurisdiction nor shall the taking of proceedings in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or otherwise. Also, you irrevocably waive any objections on the ground of venue or inconvenient forum or any similar grounds and irrevocably agree that any judgment in any proceedings brought in any court referred to in this clause shall be conclusive and binding and may be enforced in any other jurisdiction.
Dated: February 2013