Advertising Terms & Conditions
Digital Advertising Terms & Conditions
In these Conditions, the following words and expressions shall have the meaning set out below:
Additional Fee means a sum of money payable by the Advertiser to Immediate in respect of the number of Ad Impressions in any month of the agreement in excess of the Ad Impressions booked and up to the Ad Impressions booked, and calculated in accordance with the basis of the Fee;
Ad Impression means any instance when a page is downloaded to a User where that page includes an Advertising Banner;
Advertiser shall mean either an advertising agency where an advertising agency is used and if no advertising agency is used, any person, partnership or company and/or its agent placing orders for an insertion of an advertisement on any Site;
Advertising Banner means a branded banner occupying a file of up to 12k and not more than 468 x 60 pixels, or skyscraper format up to 15k and 120×600 or button up to 5k and 120×60, or rich media or any other form of advertising creative on various pages of the Site which may include a hyper-text link to the Advertiser site;
Agreement means these Conditions and the booking form agreed between the parties;
Campaign End Date means the final day of the Campaign Period;
Campaign Period means the period agreed between the parties as the time during which the advertising detailed in the Booking Form shall be effected;
Campaign Start Date means the first day of the Campaign Period;
Fee means the sum payable to Immediate in consideration for the advertising activity as agreed between Immediate and the Advertiser and specified on the Booking Form;
Site means the web site specified in the Order as the site on which the Advertising Banner is booked to appear;
Page Traffic Statistics means the number of Ad Impressions, and the click-through rate in respect of the Advertising Banners occurring during the previous calendar month; and
User means any person who accesses the Site.
2 Basis of Agreement
2.1 Where the Advertiser is an advertising agency, the relationship between Immediate and such agency is that the order is issued and shall be treated as issued by the Advertiser as a principal and there shall be no contract between the Advertiser’s Advertiser and Immediate, nor shall the Advertiser’s Advertiser be able to claim upon the contract of the agency with Immediate.
3 Rights and Obligations of Immediate
3.1 Advertisements are accepted at Immediate’s absolute discretion and subject always to the following conditions:
3.1.1 Material provided by the Advertiser being in accordance with the standards and guidelines of Immediate;
3.1.2 subject to the status of the Advertiser itself; and
3.1.3 where applicable, subject always to the provisions of condition 7 of these Conditions.
3.2 Subject always to clause 3.1 and receipt by Immediate of a signed copy of the Booking Form, Immediate will publish the Advertising Banner on the Site each day during the Campaign Period or until the Ad Impressions booked have accrued in respect of the Advertising Banner.
3.3 Immediate will submit all Page Traffic Statistics to the Advertiser within thirty days of the end of each month during the Campaign Period.
4 Rights and Obligations of the Advertiser
4.1 The Advertiser agrees to supply either:
4.1.1 a file containing the Advertising Banner or;
4.1.2 all the information, trade marks, logos and other materials necessary to enable Immediate to create the Advertising Banner (the information) to Immediate in an agreed format and medium (the Format) on or before the Copy Delivery Date.
4.2 The Advertiser hereby grants to Immediate the right to link to the Advertiser site via the Advertising Banner during the Campaign Period.
4.3 The Advertiser will inform Immediate at least ten working days in advance of any planned changes to the Advertiser site that might affect the performance of any part of Immediate’s obligations under this Agreement.
5 Acceptance of Advertising Banner
5.1 The Advertising Banner will be published on the Site in consideration of payment of the Fee.
5.2 Immediate may at its absolute discretion omit, suspend or change the position of any Advertising Banner accepted. Such changes will be notified to and discussed with the Advertiser in good faith.
6.1 The Advertiser shall pay the Fee on the dates set out in the booking form.
6.2 Immediate shall invoice the Advertiser for any Additional Fee in respect of the previous calendar month, which invoice shall be payable on the 15th day of the month which follows the month of the invoice.
6.3 If the number of Ad Impressions in any month appears likely to exceed the Ad Impressions Booked, Immediate will notify the Advertiser and the parties shall agree in good faith either to reduce the average number of pages of the Site which will include an Advertising Banner for the remainder of the month so that the number of Ad Impressions does not exceed the Ad Impressions booked or instead to permit the Ad Impressions booked to be exceeded with a pro rata increase in the Fee payable by the Advertiser in respect of that month.
6.4 If the number of Ad Impressions in any month is less than the Ad Impressions booked, the deficit will be carried over to the next month and aggregated to the target number of Ad Impressions for that month.
6.5 If at the end of the Campaign Period there is an aggregate deficit in the number of Ad Impressions compared with the Ad Impressions booked over the entire Campaign Period, Immediate and the Advertiser will meet to agree a mutually acceptable settlement and, if no other agreement is reached, Immediate will reimburse a portion of the Fee to the Advertiser in respect of the deficit pro-rated according to the Basis of Fee.
6.6 If there is disagreement between the parties regarding the number of Ad Impressions served and the discrepancy is +/- 10%, Immediate’s figures will be used. Otherwise any discrepancy will be dealt with on a case by case basis.
6.7 If the Fee due from the Advertiser to Immediate is not paid in accordance with the payment terms, then without prejudice to any other rights and remedies of Immediate, the Advertiser shall pay to Immediate interest on the amount outstanding from the date due until payment is made at the rate of four per cent (4%) per annum above the base rate as stated by Barclays Bank Plc in the United Kingdom compounded at monthly intervals.
6.8 The Advertiser shall pay VAT on the Fee as appropriate.
7 Use of Trade Marks
Immediate will be entitled to use the Advertiser’s name and Trade Marks in connection with the Advertising Banner.
8 Advertising on BBC-branded Sites
8.1 Any advertisement intended for publication on a BBC-branded Site shall be accepted by the Publisher subject always to the following conditions:
8.1.1 material provided by the Advertiser must be in full compliance with all editorial and commercial standards and guidelines of the BBC and/or BBC Worldwide as appropriate, including but not limited to the specific restrictions in respect of the BBC’s intellectual property and references in advertising to BBC performing talent; and
8.1.2 the advertisement may not contain any reference to the BBC nor imply any support, endorsement or connection between any or all of the Advertiser, the product or service being advertised and the BBC.
8.2 Where the Order applies wholly or in part to a BBC-branded title, Immediate shall be entitled at its discretion to assign or license the whole or any part of its rights under these Conditions to the BBC or to any BBC subsidiary, and in such event all of the representations, warranties and undertakings on the part of the Advertiser contained in these Conditions shall inure for the benefit of the BBC and with effect from the date of such assignment or licence, Immediate shall have no further liability to the Advertiser.
9.1 Immediate warrants to the Advertiser that:
9.1.1 it has the full power and authority to enter into and perform this Agreement and have not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement and;
9.1.2 it will use reasonable skill and care in designing and installing the Advertising Banner.
9.2 The Advertiser warrants and undertakes to Immediate that:
9.2.1 it has the full power and authority to enter into and perform this Agreement and has not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement;
9.2.2 nothing contained in the information or the Advertising Banner shall infringe any right of copyright, right of trade mark, right of privacy, right of publicity or personality or any other right of any other nature of any person, or be obscene or libellous or blasphemous or defamatory, and that the information does not incorporate any third party source material;
9.2.3 there are and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the information resulting from any act or omission of the Advertiser, which can or will impair or interfere with the rights of Immediate, and that nothing contained in the information, nor any use of it, will violate any right of any third party and;
9.2.4 it owns all necessary rights in, or has all necessary licences in respect of the trade marks.
9.2.5 unless otherwise agreed by Immediate in writing, the Advertising Banner shall not include any cookies, tracking technologies or other technologies used to track or monitor Users.
9.3 The placing of an order for the insertion of an Advertising Banner on the Site shall constitute an undertaking by the Advertiser to Immediate that any site linked into via the Advertising Banner and the Advertising Banner:
9.3.1 complies with all relevant consumer protection legislation and advertising codes;
9.3.2 does not contain material that is obscene, blasphemous, defamatory, infringing of any rights of any third party or otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction from which the Advertising Banner will be accessible or which might bring Immediate into disrepute and;
9.3.3 complies with the relevant parts of the then current BBC Online Advertising Guidelines For Commercial Services which are available on request.
10.1 The Advertiser hereby agrees to indemnify Immediate and keep it indemnified at all times against all claims, proceedings, demands, damages, liabilities and costs arising in connection with or further to the subject of this agreement, including legal costs arising out of any use of an Advertising Banner by a User, further including without limitation in respect of any transaction between the Advertiser and a User.
10.2 Immediate will not be liable for any loss or damage, direct or consequential, occasioned by error in the positioning of or omission to publish any Advertising Banner or for late publication of an Advertising Banner or failure to perform any other obligation whether occasioned by negligence or otherwise save in cases occasioned by the direct negligence of Immediate, in which case compensation may not exceed the cost of the Fee in relation to the relevant Advertising Banner.
11 Intellectual Property Rights
11.1 Immediate is the owner or licensee of all intellectual property rights in the Site and the design of the Advertising Banner (if designed by Immediate), with the exception of any third party trade marks appearing on the Advertising Banner.
11.2 The Advertiser is the owner of all intellectual property rights in the Advertiser site and the Advertiser logos and Advertiser-owned trade marks that may feature within the Advertising Banner.
11.3 If any third party claims that the design of the Advertising Banner infringes the intellectual property rights of that third party, Immediate will consult with the Advertiser and may modify the Advertising Banner or delete or replace any part of the material, or information contained in the Advertising Banner, provided that any modification, deletion or replacement does not materially affect a User’s ability to access the Advertiser site via the Advertising Banner.
12 Confidentiality and Data
12.1 Each party agrees to keep confidential (both during and after the Campaign Period) the terms of this Agreement, the Page Traffic Statistics and all other information concerning the business or affairs of the other. This obligation will not apply in the case of any disclosure required by law, trivial information or information which is already publicly available or in the possession of a party at the time of disclosure by the other (other than as a result of a breach of any confidentiality obligation).
12.2 Each party will comply with all English data protection legislation.
12.3 Each party will implement and maintain appropriate security procedures to prevent loss or corruption of, damage or unauthorised access to any data and materials.
Both parties shall have the right to cancel this Agreement without liability to the other party (except that the Advertiser shall reimburse to Immediate any costs incurred up to the date of cancellation in production of the Advertising Banner, on a reasonable time spent basis) provided that notice to cancel in writing is received by the Immediate Account Manager or the Buyer, in writing, giving at least 28 days notice.
13.1 Both parties shall have the right to terminate this Agreement upon the giving of written notice in the event of any of the following events:
13.1.1 if the other commits any material breach of its obligations under this Agreement which, in the case of a breach capable of remedy, is not remedied within 10 days of service of a notice specifying the breach and requiring it to be remedied;
13.1.2 if the other holds any meeting, or proposes to enter into a meeting, or has proposed any arrangement or composition, with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over, or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or;
13.1.3 pursuant to Clause 16.
13.2 Forthwith on termination of this Agreement:
13.2.1 Immediate will remove the Advertising Banner from the Site and;
13.2.2 the Advertiser will account to Immediate for the Fee due up to and including the last day of the Campaign Period or date of termination, as applicable.
13.2.3 Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.
14.1 Both parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to this Agreement or a breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations by appropriate representatives of the parties the dispute shall be referred to the signatories of this Agreement or their successors who shall attempt to resolve the dispute.
14.2If any an attempt at resolution further to 13.4 fails to result in a settlement, the matter at the election of either party may be submitted for resolution to a court of competent jurisdiction, which shall be the courts of England and Wales.
Any notice given under this Agreement will be in writing and may be delivered to the other party or sent by pre-paid post or facsimile transmission to the address or transmission number of that party specified in the Schedule or such other address or number as may be notified under this Agreement by that party from time to time for this purpose.
16 Force Majeure
A party will not be liable for any failure/delay in performing its obligations under this Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 20 working days, the other party may terminate this Agreement immediately by written notice.
17.1 This Agreement is personal to and for the sole benefit of the Advertiser and the Advertiser shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interests or obligations under this Agreement to any person or organisation.
17.2 Immediate shall be entitled to assign or license the whole or any part of its rights under this Agreement to any of company in the Immediate Media Company group and in such event all of the representations, warranties and undertakings on the part of the Advertiser contained in this Agreement shall inure for the benefit of such assignee and if the assignee undertakes direct with the Advertiser to comply with the obligations of Immediate to the Advertiser (but not otherwise), then with effect from the date of such undertaking, Immediate shall have no further liability to the Advertiser.
18.1 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
18.2 Each party confirms that this Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them.
18.3 No failure or delay by any party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
18.4 The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.
18.5 Any variation to this Agreement must made be in writing and mutually agreed by Immediate and the Advertiser.