Advertising Standards – the codes of conduct and rulings (as appropriate) of the Advertising Standards Authority, the British Code of Advertising Practice, the IBA Court of Advertising Standards and Practice for Radio and Television, the Institute of Practitioners in Advertising and the other codes of standards laid down voluntarily within the industry to ensure that all advertising placed is legal, decent, truthful and honest.
Client (You, Your) – Whoever acts as principle in commissioning Media Buying Services
Client’s Agent – any third party engaged by the Client to participate in production of Creative Material and/or to place orders for Media Activity on the Client’s behalf.
Creative Material – whatever the Media Owner requires in fulfilling an order for Media Activity
Due Date – Where credit terms have been agreed in writing – it will always be stated in the “booking form” for all Media Activity.
The Booking Form – The Document in which it states all of the Media Activity which is signed by both The Client and The Clients Agent.
Media Buyer (Our, Us, We) – James William Ellis Ltd T/A JWE Media (Company Registration 13086957)
Media Activity – includes, but is not limited to: space in any printed or electronic publication or medium; airtime on any broadcast medium; direct marketing by printed or electronic method; digital marketing.
Media Owner – any third party responsible for the fulfilment of the Media Activity.
Media Buying Service – scheduling Media Activity; agreeing the price and placing orders with the Media Owners for the fulfilment of Media Activity as required by the Client.
Media Schedule – a plan of proposed purchases of Media Activity showing the media, timing and estimated cost
Order – any order placed by You or Your Agent and accepted by Us for the delivery of Media Buying Services and fulfilment of a Media Schedule including any subsequent amendments.
Written (Writing) – written communication in English in either hard copy, facsimile or e-mail form
1) Legal Status
We act in all our contracts as a principal at law.
2) Duration and Scope of Agreement
2.1) These Terms & Conditions will remain in force unless and until varied in Writing in accordance with clause 11 below.
2.2) All Orders placed by You and accepted by Us will be separate Contracts subject to the terms of these Terms & Conditions.
2.3) Any amendments to a Media Schedule agreed between You and Us will be treated as an amendment to the original Order and Contract and not a new Contract.
2.4) Any services provided by Us outside our Media Buying Service will be separately governed by our standard Client Creative Services Terms & Conditions.
3) Terms of Payment
3.1) Our settlement terms are payment by cheque received by Us by the Due Date, or cleared funds in our account by bankers automated clearing (BACS) by 2 working days following the Due Date.
3.2) We require a remittance advice giving details of invoices being paid at time of payment being made.
3.3) Failure to settle within 5 days of the Due Date entitles Us to impose an immediate 3 per cent surcharge followed by a 2 per cent surcharge in respect of each succeeding month before settlement.
3.4) No rebate of any commission paid by the Media Owner to Us will be due to You, unless otherwise agreed in the terms of instruction
3.5) Where an invoice remains unpaid for more than three months, we reserve the right to cancel forthwith, without prejudice to any outstanding liabilities, any subsisting Contracts relating to the Your Media Activity by giving written notice to You to that effect. We reserve the right to charge a fee for work in progress and any losses suffered by Us as a result of such cancellation.
3.6) Cancellation of a Contract under clause 3.5) will also automatically cancel any media buying services agreement or media buying services contracts with Us.
3.7) We are required within our media owner contracts to have credit insurance (our current credit insurance supplier is Hiscox) on all client media bookings and where we are unable to obtain appropriate credit levels, We are required to have obtained payment in advance of the media bookings being made. We endeavour to obtain credit and require You to provide company information to give to our credit insurance supplier.
3.8) As part of Hiscox terms and conditions We are obliged to report all late payments not settled within 60 days. Please be aware that this may affect your future credit status.
Late payment on any account may result in credit limits and or your credit status being withdrawn immediately on future activity.
4) Approvals and Authority
4.1) After receiving Your request for a campaign, We will submit to You for specific approval:
- i) Media schedules for Media Activity; and
- ii) Estimates for the cost of the various other items which may be involved; and
iii) All of which will be stated in our Booking Form, which The Client and The clients Agent will sign.
4.2) Your signed approval of The Booking Form (with estimates) will be Our authority to make production contracts for Media Activity under the terms and conditions required by Media Owners. We will notify You of any changes in the rates or conditions of Media Owners of which We are notified and which affect Your Contract.
4.3) Where time is of the essence for the delivery of Media Activity you must specify this in your approval of the Media Schedule.
5) Cancellation and Amendments
5.1) You may request Us in Writing to extend, change, reject, cancel or stop any and all plans, schedules or work in progress, and We shall take all reasonable steps to comply, provided that We can do so within Our contractual obligations to Media Owners.
5.2) You will reimburse Us for any reasonable charges or expenses incurred by Us as a direct or indirect result of any such extension, change, rejection, cancellation or stopping.
6) Limitation of Liability
6.1) Notwithstanding anything else to the contrary in these Terms & Conditions, We do not exclude or limit Our liability (even if any other term would otherwise suggest this may be the case) for death or personal injury caused by Our or Our employees’ negligence or for fraudulent misrepresentation.
6.2) If, due directly or indirectly to war, terrorist action or threatened action, hostilities, strikes, industrial action short of a strike, lock-outs, accident, civil commotion, fire, blockage, import or export embargo, natural catastrophe, Act of God or any other matter of similar nature affecting Us, Our staff, Our management, outside suppliers, Media Owners or other relevant parties, We fail to carry out the service contemplated by the Contract (or any part there of) such failure shall not constitute a breach of the Contract and We shall not be liable to any manner howsoever for any costs, expenses, loss or damage which may be incurred by You directly or indirectly as a result of such failure.
6.3) We will not be liable for any indirect or consequential loss (including loss of profits) to You or for any loss to You arising from claims of whatever nature by third parties.
6.4) We have no responsibility for the quality of artwork, reproduction or quality of the fulfilment of the Media Activity.
6.5) We have no responsibility for the failure in delivery of the Media Activity caused by the late or incorrect delivery of Creative Material whether or not this is the fault of You or the Client’s Agent.
6.6) We have no responsibility for the success of the Media Activity.
6.7) We will use our best endeavour to place an order for Media Activity with the Media Owner in accordance with the Media Schedule, but, even if time is stated to be of the essence, should the Media Schedule not be completed to time or specification, Clause 6.3 will still be applicable.
6.8) We will take all reasonable precautions to safeguard Your property entrusted to Our care, but We will not be responsible in any manner howsoever, for its loss, damage, destruction or unauthorised use except where the same is the direct result of Our negligence or wilful default.
6.9) Any claims against Us arising as a result of damage, delay or loss of goods in transit must be submitted in writing to Us and the carrier so as to reach Us and the carrier within three days of delivery and claims for non-delivery within twenty-eight days of despatch of the goods. All other claims must be made within ten days of delivery.
6.10) Subject to clause 6.1 above, Our maximum aggregate liability under or in connection with any Contract under these Terms & Conditions shall not exceed the fees paid by You to Us in respect of that Contract.
7) Indemnities
7.1) You will fully and effectually indemnify Us and keep Us so indemnified at all times against all proceedings, threatened proceedings, claims, demands, penalties, fines and civil liabilities of whatever nature (and all costs and expenses incurred in connection therewith and all costs incurred in connection with any criminal liabilities, proceedings, threatened proceedings) including, but not limited to, infringement of intellectual property rights and breaches of Advertising Standards, which may at any time be incurred by, imposed on or asserted against Us in any way relating to or arising directly or indirectly in any manner in connection with the Media Activity.
7.2) You will remain liable to pay Us for Our Media Buying Service where the Media Activity cannot be fulfilled due to any act or omission by the You or your Agent and where Our contract with the Media Owner cannot be cancelled.
7.3) The indemnity under clause 7.1 shall extend to any application by Us of clause 8.2
8) Copyright & Other Rights
8.1) Not withstanding anything else in these Terms & Conditions, We shall retain the right to use any general know-how, expertise and experience gained in providing the Media Buying Services. In addition, We shall retain ownership in all intellectual property rights in and to all underlying, pre-existing computer software tools and knowledge used in the provision of Media Buying Services for You under these Terms & Conditions (“Pre-existing Intellectual Property”) and We shall be entitled to use such Pre-existing Intellectual Property as We see fit, including, without limit, to provide services to Our other clients.
8.2) We shall be entitled to use Creative Material produced for You (whether by Us or any third party) and the subject of Media Activity placed by Us for the purpose of promoting Our own business, for example, by including the same on Our web site and/or entering into industry awards; and
8.3) We shall retain all intellectual property rights in any work produced by Us, during the provision of the services or otherwise, which is not included or incorporated into the Media Buying Services provided for You, including without limitation any work contained in a pitch or presentation made to You, whether in competition with another media company or not, in the event that You choose not to proceed with Our Media Schedule beyond concept stage.
9) Ownership, Insurance and Custody of Material
9.1) Subject to Clause 6.8 We will keep in Our care materials entrusted to Us as Your property, but will not be required to recover plates, positives and other similar items from Media Owners and other suppliers once We have parted with them which You hereby authorises Us so to do. We shall be entitled to destroy all such material left in Our custody for more than one year, or after giving notice to You at such earlier time as We consider reasonable
9.2) You will insure Your property when in the possession of, and when in transit between Us, the Media Owner, printers, production companies and other outside suppliers and sub-contractors
10) Confidential Information
10.1) Save as required by law or regulatory body, We acknowledge a duty not to disclose without Your permission during or after the fulfilment of the Contract any confidential information resulting from studies or surveys commissioned and paid for by You. You, in turn, acknowledge Our right to use as We see fit any general marketing or advertising
intelligence in the field of Your product or service which we have gained in the course of Our appointment.
10.2) During or after the continuance of Contracts under these Terms & Conditions, we acknowledge Our responsibility to treat in complete confidence all the marketing and sales information and statistics with which You may supply us in the course of any work for You. Reports and information submitted by Us to You shall be treated as confidential. In particular the rates We negotiate with Media Owners and with You are to be treated as confidential.
10.3) When You provide Us with personal data which is or should be subject to the Data Protection Act(s) (Personal Data) You warrant that the Personal Data is to be used for a purpose for which You have a current and valid Data Protection registration and that You have proper consent for that use from each person. You will remain the data controller as defined by the Act. In turn We undertake to only use the Personal Data for the use which You have intended and we will execute reasonable care in the security of the Personal Data which We will retain only as long as reasonably required for proper execution of the Order to which it relates. Where We pass the Personal Data to a third party for part of the fulfilment of the Order We will require a similar undertaking from the third party.
All information supplied through media schedules or reports, including analysis, media rates, sizes & positions remain the intellectual property of James William Ellis LTD and submitted in good faith & the understanding that the information provided cannot be used by any third party other than if granted permission from James William Ellis LTD.
11) Variation, Termination and Continued Applicability
11.1) Any variation to these Terms & Conditions will only be valid if agreed in Writing and signed by a director of both parties.
11.2) Termination of a Contract may be effected at any time under and subject to Clause 2 and 5 above.
11.3) Both parties may terminate Contracts under these Terms & Conditions immediately upon notice if:
- i) the other commits a material breach of these Terms & Conditions and, if remediable, such breach is not remedied within 30 days of the date of written notice sent to that party by the party not in default, specifying the nature of the breach and requiring that the same be remedied within such 30 day period; or
- ii) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is give by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 111106); or
- iv) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
- v) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
- vi) the other party ceases, or threatens to cease, to trade; or
vii) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
viii) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt
11.4) We reserve the right to terminate all Contracts under these Terms & Conditions and/or suspend performance of all services provided to You (at our absolute discretion) in the event that You fail to fulfil Your obligations to pay under 3 above.
11.5) Where there is no new Media Buying Services activity arising from Contracts under these Terms & Conditions the parties agree that all the terms of these Terms & Conditions will remain in force in respect of any Orders already placed by You
11.6) Except for cancellation under clause 3.6, termination of these Terms & Conditions does not terminate any separate agreement or contracts for creative or marketing services You may have with Us.
11.7) On termination of a Contract for any reason:
- i) You will immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, We may submit an invoice, which shall be payable immediately on receipt; and
- ii) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12) Assignment and Rights of Third Parties
12.1) You shall not, without Our prior Written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under the Contract.
12.2) Contracts under these Terms & Conditions are made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and are not intended to benefit, or be enforceable by, anyone else.
13) Notices
Notice given under these Terms & Conditions shall be in Writing, sent for the attention of the Finance Director at the registered office (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
14) Law and Jurisdiction
All Contracts between You and Us are to be governed by and construed in accordance with English law and any litigation for enforcement or redress shall be brought in the Courts of England.