Terms & Conditions
These GENERAL TERMS & CONDITIONS (the “GTs&Cs”) are legally binding and together with the applicable booking form (the “Booking Form”) or Heads of Agreement (“HoA”) (as the case may be) between the parties constitute the agreement (the “Agreement”) between the parties relating to the applicable booking (the “Booking”) accepted by ESTV LIMITED (owner and operator of London Live (the “Channel”)) located at Northcliffe House, 2 Derry Street, London W8 5HF (“ESTV”).
Unless otherwise noted herein, defined terms used in these GTs&Cs shall have the same meanings as set forth in the applicable Booking Form/HoA. If there is a conflict between these GTs&Cs and a particular Booking Form/HoA, the provisions of the applicable Booking Form/HoA shall prevail.
In consideration of the promises and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. ACCEPTANCE: By placing an order for an advertisement (each, an “Ad”, and, collectively, the “Ads”) with ESTV, the party placing the order (“Company”) accepts in full these GTs&Cs.
2.1. ESTV reserves the right to decline any Ad. Ads provided by Company hereunder will only be exhibited by ESTV if they are approved by ESTV, satisfy ESTV’s technical requirements and comply with all relevant laws, rules and regulations, including without limitation the BCAP Code and the Ofcom Broadcasting Code.
2.2. Company shall clear all Ads in advance of exhibition on the Channel in accordance with the standards and guidelines of Clearcast.
2.3. Ads which are not standard time lengths will only be accepted if they can be transmitted within the same break as the other Ads for Company and the total length bought is a standard time length. Rates for standard and non-standard time lengths are available from ESTV on request.
2.4. Company hereby grants ESTV a royalty-free non-exclusive licence to exhibit each Ad delivered hereunder on the Channel.
2.5. The exhibition of each Ad on the Channel is subject to suspension, cancellation and placement at the sole discretion of ESTV.
2.6. Company shall cooperate fully with ESTV and provide, at no cost to ESTV, all assistance that is reasonably required as a result of any enquiry, claim or complaint regarding any Ad, and, in the event that any such enquiry, claim or complaint arises, ESTV shall have the right, exercisable in its sole discretion, to cease exhibiting the applicable Ad on the Channel.
3.1. Each Ad, fully complying with ESTV’s technical specifications, must be delivered not less than two (2) clear business days before the date of the intended transmission accompanied with rotation instructions. In exceptional cases ESTV will endeavour to accept an Ad delivered less than two (2) business days before the date of transmission.
3.2. Where an Ad is not delivered at least two (2) clear business days before the intended transmission date Company shall at the discretion of ESTV be liable to pay in full for the airtime booked whether or not the applicable Ad is in fact transmitted.
3.3. If ESTV decides that an Ad is unsuitable, ESTV shall so notify Company as soon as reasonably practicable and Company must then supply an alternative at its own cost as soon as possible and in any case not later than two (2) clear business days prior to the intended transmission. In the event that Company does not so supply an alternative or the alternative supplied is not accepted ESTV shall be entitled to be paid by Company in full for the airtime booked.
3.4. The provisions set out in paragraphs 3.1 to 3.3 above shall be without prejudice to any special arrangements for Bookings made at shorter notice and agreed in writing by ESTV.
4.1. If Company fails to make any payment under this Agreement when due then without affecting any other rights which it may have, ESTV may, in its sole discretion:
4.1.1. suspend the applicable intended transmission date until the relevant amount is paid; and
4.1.2. charge interest on any unpaid amount at a rate of four percent (4%) above the base rate from time to time of Barclays Bank plc to run from day to day from the due date until payment in full is received.
4.1.3. In the event that payment under this Agreement is to be made in instalments, if Company fails to pay any instalment when due then all instalments of the applicable total payment amount shall be accelerated and become due with immediate effect.
5.1. Any Booking may be cancelled by either party provided that notice in writing is received and acknowledged by the relevant party not less than six (6) weeks before the first intended transmission date ("first spot"). Cancellation or postponement requests for campaigns within six (6) weeks before the first intended transmission date shall be considered by ESTV and may be accepted at ESTV’s absolute discretion subject to the following cancellation charges that apply to the entire campaign:
5.2. Unless a Booking is cancelled in accordance with paragraph 5.1 above, if Company fails to deliver any Ad in accordance with paragraph 3 above, Company will remain liable to pay in full whether or not the applicable Ad is transmitted.
5.3. Any postponement of a campaign by Company for which Company has pre-paid must be recommitted at the time of postponement to a time not more than six (6) calendar months after the first spot of the campaign being postponed. Any postponed campaign not recommitted within six (6) calendar months of the first spot shall be subject to ESTV's cancellation charges of 100% that apply to the entire campaign.
6. REPRESENTATIONS AND WARRANTIES: Company hereby represents and warrants that:
6.1. Company has the right to enter into this Agreement and perform all of its obligations hereunder;
6.2. The exercise by ESTV and its successors, licensees and assigns of the rights granted herein by Company will not violate any law, rule, regulation or right of any kind whatsoever or give rise to any actionable claim or liability; and
6.3. No claims have been made or are pending against Company or any other individual or entity with respect to any of the Ads.
7.1. Neither party shall be liable to the other, whether in tort, contract or otherwise, for any anticipated loss of profit, loss of profit (whether direct or indirect), loss of opportunity, loss of goodwill and/or any loss which is indirect, consequential or economic or which, whether or not in practice it arises as a direct and natural result of a breach of this Agreement, was not at the time this Agreement was made, a reasonably foreseeable result of such a breach.
7.2. Each party will indemnify and keep indemnified the other party against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities (including, without limitation, reasonable legal fees) suffered by the other party arising from any breach by a party of any provision of this Agreement.
8. DATES/TIMES OF BROADCAST/TRANSMISSION: ESTV does not guarantee that the intended times and/or dates of broadcast/transmission will be adhered to. If an Ad is not broadcast/transmitted on the day and in the break initially contemplated, ESTV will endeavour to offer alternative mutually agreeable broadcast/transmission dates/times.
9. TERMINATION: If either party (a) defaults in the performance of any of its obligations hereunder and such default is incapable of remedy; or (b) defaults in the performance of any of its obligations hereunder and such default is not cured within five (5) days after written notice thereof to the defaulting party; or (c) becomes insolvent, or if a petition under any bankruptcy act shall be filed by or against a party and such petition is not dismissed within thirty (30) days after it is filed; or (d) executes an assignment for the benefit of creditors, or if a receiver is appointed for the assets of a party; or (e) ceases to carry on business (any of the above acts are hereinafter called "Event of Default"), then the other party may, in addition to any and all other rights which it may have against the defaulting party, terminate this Agreement by giving written notice to the defaulting party at any time after the occurrence of an Event of Default.
10.1. This Agreement contains the entire understanding and supersedes all prior understandings between the parties relating to the subject matter hereof, and this Agreement cannot be changed or modified except in a writing executed by both parties. Either party may assign this Agreement to its parent company or to any person or entity acquiring all or substantially all of the assigning party’s assets (provided that the assigning party remains primarily liable for all of its obligations hereunder); any other assignment shall be subject to the other party’s prior written consent.
10.2. Each party shall keep any information relating to the business affairs of the other party and the terms of this Agreement confidential and will not disclose such information to any other person except as necessary to its professional advisers, or as required by law or to the extent that such information is already in the public domain through no fault of the receiving party. Company shall not make any public statement regarding this Agreement or the subject matter of this Agreement without the prior written consent of ESTV. For the avoidance of doubt and without limitation, the provisions of this paragraph 10.2 shall survive the termination of this Agreement.
10.3. Any terms of this Agreement which by their nature are meant to survive the termination of this Agreement shall survive the termination of this Agreement.
10.4. If either party is materially hampered from performing hereunder by reason of any law, natural disaster, labor controversy, war, terrorist attack or threat thereof or any similar event (“Force Majeure Event”), failure to perform shall not be deemed a breach of or default under this Agreement and neither party shall be liable to the other therefor; provided, however, that this Force Majeure provision shall not in any circumstances whatsoever apply to any payment obligation by Company to ESTV hereunder.
10.5. Nothing contained in this Agreement shall create any partnership or joint venture between the parties. Neither party may make binding commitments on the part of the other, except as otherwise specifically agreed hereunder. This Agreement is not for the benefit of any third party not a signatory hereto and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
10.6. All notices in connection with this Agreement shall be given in writing, addressed to each party as indicated above, by prepaid mail, personal delivery, or email and will be deemed given three (3) days after the date of mailing, if so mailed, or on the date of delivery, if personally delivered, or on the date successfully transmitted, if transmitted via email. If the date on which notice is due falls on a Saturday, Sunday or holiday or other day on which ESTV is not open for business, then the date for giving such notice shall be automatically extended to the next, regular business day. The parties may change their respective notice address by giving the other party written notice of the new address.
10.7. If any provision herein is unenforceable then such provision shall be of no effect on any other provision herein.
10.8. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial excuse of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. No waiver shall be binding or effectual for any purpose unless expressed in writing and signed by the party giving it and any such waiver shall be effective only in the specific instance and for the purpose given.
10.9. Termination of this Agreement shall be without prejudice to any rights, obligations or duties which have accrued prior to such termination.
10.10. This Agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.