Terms and Conditions
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DEFINITIONS AND INTERPRETATION
Effective as of: November 28, 2002 The Dolphin Television.com Web site (the "Site") is maintained by Dolphin Television Ltd. ("Dolphin Television," "us," "our," or "we"). Our address is 114 St Martins Lane, London WC2N 4BE. We can also be reached by e-mail at firstname.lastname@example.org. Our data collection and use policies with respect to the Site are set forth in this statement ("Policy"). By using this Site, you signify your acceptance of this Policy.
- By placing an order with the Company (hereinafter defined) for Airtime (hereinafter defined), the Agency or Advertiser as the case may be, accepts in full these Terms and Conditions.
- No terms or conditions other than those set forth herein or any variations under Conditions 13, 14 and 15 shall be binding upon the Company or the Agency or the Advertiser as applicable unless in writing and signed by the Company and the Agency or the Advertiser.
BROADCAST OF ADVERTISING COPY ETC.
- The Advertiser hereby authorises the Company to transmit all Advertising Copy delivered pursuant to these Terms and Conditions, and specifically hereby grants a royalty-free non-exclusive licence to the Principal to broadcast any relevant Advertising Copy on any form of television.
- Advertisements will only be transmitted if they are approved by the Company, satisfy its technical requirements and comply with the Act and Code of Advertising Standards and Practice issued by OFCOM.
- Agency or the Advertiser shall ensure that Advertising Copy complies with the CLEARCAST Notes of Guidance for Television Advertising and the Copy Clearance Secretariat (operated by the ITV Association) Notes Of Guidance and Copy Clearance Bulletins in force at the time of transmission and that in addition:
- Scripts and/or storyboards, along with consignment notes for all spot advertisements must be submitted in advance to the Copy Clearance Secretariat for provisional approval before transmission;
- All finished Advertising Copy must be submitted to the Copy Clearance Secretariat for approval before transmission;
- Approval by the Copy Clearance Secretariat of any Advertising Copy shall not in any way prejudice the Company's right to reject any advertisement as provided under Condition 5 below.
- Compliance with the terms set out in Condition 3a, 3b and 3c shall not in any way prejudice the Company's right to reject Advertising Copy as provided below.
- The Company reserves the right in its absolute discretion and without incurring any liability to decline to transmit any advertisement without giving any reason in writing for so declining but the Agency or the Advertiser as the case may be shall not be liable to pay for any advertisement which the Company so declines to transmit provided such Advertising Copy has been delivered on time as provided for in Condition 5 below.
- The Company reserves the right in its absolute discretion to do any act or thing in respect of the transmission of any advertisement or part thereof (including the fading, editing, or cutting thereof), which is found to be unsuitable and the Company shall not thereby incur any liability to the Agency or Advertiser who shall have no claim whatsoever for damages or otherwise in respect of any non-transmission of any such advertisement or part thereof but the Agency or Advertiser shall remain liable to the Company for the charges payable hereunder for such advertisement.
- Advertising Copy requirements - Master Tape: 1 copy on Digital Beta SP; I VHS copy; script; music cue sheets, consignment notes as applicable, to be delivered to the Company accompanied with rotation instructions. The Company requires that each Digital Beta SP contain only 1 advertisement. The Company reserves the right at its discretion, to reject any tape that contains multiple advertisements on it.
- The Company reserves the right at its absolute discretion to refuse advertisements advertising more than one product.
- No protection against proximity of competitive products is given.
- All programmes are subject to suspension or cancellation or placement at the sole discretion of the Company.
- The Company shall not be held responsible for any addition to, changes in or deletions from any Advertising Copy required by OFCOM or delays resulting therefrom.
- Subject to Condition 4a, the Company reserves the right to refuse Advertising Copy that does not comply to Standard Timelengths requirements.
- The Company reserves the right to reject competitive channel advertisements that contain day or time specific or appointment to view references in either a verbal or visual context.
NON STANDARD TIMELENGTHS
- Advertisements which are not Standard Timelengths will only be accepted by the Company if they can be transmitted within the same break as the other advertisements for the same client or product and the total length bought is a Standard Timelength. Rates for standard and non-standard timelengths are available form the Company on request.
- If in the Company's opinion Advertising Copy advertising more than one product is the consequence of editing two or more advertisements with the purpose of taking advantage of reduced rates for Airtime of a greater timelength, the Company reserves the right, at its absolute discretion, to charge such Airtime at a rate equivalent to that which the Company would have charged had the Advertising Copy for each product been submitted to it separately.
- Advertising Copy (including the material specified in condition 3j must be delivered to the Company not less than two (2) clear Working Days before the date of the intended transmission accompanied with rotation instructions. In exceptional cases the Company will endeavour to accept Advertising Copy delivered less than two (2) working days before the date of transmission. In such cases the Company is not obliged to notify the Agency or the Advertiser as the case may be if it decides the Advertising Copy is unsuitable.
Where Advertising Copy is not delivered at least two (2) clear Working Days before the intended transmission date, the Agency or the Advertiser as the case may be shall at the discretion of the Company be liable to pay in full for the Airtime booked whether or not any advertisement is in fact transmitted.
Advertising Copy or changes to transmission rotation instructions accepted at the absolute discretion of the Company less than two (2) clear Working Days before the intended transmission date shall be subject to a surcharge of £300 plus VAT per copy.
- If the Company decides that an advertisement is unsuitable, the Company shall notify the Agency or the Advertiser as the case may be who must supply alternative at its own cost as soon as possible and in any case not later than two (2) clear working days prior to the intended transmission. Alternative Advertising Copy and rotation instructions if accepted at shorter notice shall at the discretion of the Company be subject to a surcharge of £300 plus VAT per copy. Should alternative copy not be supplied or not be accepted the Company shall be entitled to be paid by the Agency or Advertiser as the case may be in full for the Airtime booked.
- The provisions of paragraphs a) and b) above shall be without prejudice to any special arrangements for bookings made at shorter notice and agreed in writing by the Company.
DATE/TIMES OF TRANSMISSIONS
- The Company does not guarantee that the times and/or dates of transmission will be adhered to. If an advertisement is not transmitted on the day and in a break arranged, the Company will endeavour to offer a transmission at some other date which may be accepted instead by the Agency or Advertiser.
- The Company shall incur no liability for any failure to transmit all or any part of any advertisement transmitted or for any failure to adhere to advertisement rotation instructions, except that if a total failure to transmit shall be due to the fault of the Company the advertisement shall not be charged for. The Company will be prepared (but not obliged) to discuss the operation of this Condition 6b in circumstances where an advertisement is substantially but not wholly transmitted correctly.
- Advertisements appearing within thirty (30) minutes of the segment booked will normally be regarded as appearing within the segment. Advertisements booked for transmission at a specific time will be transmitted in the commercial break nearest to that time.
- In the event of the Company's transmission activities being restricted, curtailed or prevented by any law or any other act or thing beyond the Company's control, the Company may at any time, notwithstanding anything herein before contained, forthwith terminate any Contract in whole or in part without prejudice to the Company's right to be paid by the Agency or Advertiser any monies due and owing by the Agency or Advertiser to the Company at the time of termination.
CANCELLATION OR POSTPONEMENT
- Subject to the provisions of Conditions 13, 14 and 15, any booking may be cancelled by either party provided that notice in writing is received and acknowledged by the Company or the Advertiser or Agency as the case may be not less than nine (9) weeks before the first intended transmission date ("first spot"). Cancellation or postponement requests for campaigns within nine (9) weeks before the first intended transmission date shall be considered by the Company and may be accepted at the Company's absolute discretion subject to the following cancellation charges that apply to the entire campaign:
Over 6 weeks from first intended transmission
20% of the value of booking at the time of cancellation
29 to 42 days from first intended transmission
35% of the value of booking at the time of cancellation
15 to 28 days from first intended transmission
50% of the value of booking at the time of cancellation
Within 2 weeks of first intended transmission
100% of the value of booking at the time of cancellation
Unless a booking is cancelled in accordance with these Conditions, an Advertiser or Agency who fails to deliver any Advertising Copy in accordance with Condition 5 will remain liable to pay in full whether or not the advertisement is transmitted. The Company reserves the right to retain all expenditure for any postponed campaign and to rebook the Airtime during a mutually agreed period.
- Any postponement of a campaign for which an Advertiser or Agency has pre-paid, must be recommitted at the time of postponement to a time not more than six (6) calendar months after the first intended transmission date ('first spot') of the campaign being postponed. Any postponed campaign not recommitted within six (6) calendar months of the first intended transmission date shall be subject to the Company's cancellation charges of 100% that apply to the entire campaign.
ADVERTISING AGENCIES AND COMMISSIONS
- An Advertising Agency or Agent shall be deemed to contract as principal in all respects (notwithstanding that its customer is identified) and as such will be personally responsible for the payment of accounts, unless other arrangements are agreed in writing. Late Copy Surcharges will be invoiced to the Advertising Agency or Agent as the principal.. It will be the responsibility of the Advertising Agency or Agent as principal, and not that of the Company to collect all monies owed by any third party agents involved.
- Unless otherwise agreed in writing, Agency commission of up to fifteen per cent (15%) will be paid by way of deduction by the Company to all Advertising Agencies who satisfy the Company's credit rating requirements and comply with the Act and any amendments thereto. The commission will be calculated on the basis of the rates applicable (i.e. excluding surcharge for late payment or late copy), less discount allowed.
MATERIALS AND PROPERTY LIABILITY
- While every reasonable care will be taken in respect of advertising films, recordings, goods or equipment, the Company cannot accept liability for the delay in delivery, loss or damage thereof whether in the studios or in transit and whether or not such films, recordings, goods or equipment are supplied by the Company and whether any delay, loss or damage is occasioned by the Company's fault or negligence. Unless otherwise instructed Advertising Copy may be destroyed by the Company if not transmitted for a period of 90 days without further reference to the respective Agency or Advertiser.
- Save for the accounts payable under Condition 10b, accounts shall be paid not later than ten working days before the scheduled transmission date and in default of payment the Company shall be entitled, without prejudice to its right to be paid for the spot and other remedies for breach of contract, to refuse to transmit the advertisement.
- Accounts payable by an Agency registered by the Agency Registration and Credit Listing Committee of ITVA and listed in its Credit List (a 'credit listed Agency') shall be paid not later than the twenty fifth (25th) day on the month following the month of transmission (provided that the Agency shall satisfy the Company of such status). In the event of an Agency failing to comply with the provisions of this Condition the Company reserves the right by notice in writing, after one written notice of due warning, to require any future accounts to be dealt with by such Agency in accordance with Condition 10a notwithstanding that the Agency remains a credit listed Agency. Payment shall be deemed to have been made in due time if the appropriate remittance is posted by first class post by the 24th day of the appropriate month. In months where the 25th falls on a Sunday or a Bank Holiday, the next working day shall be regarded as the due date by which the payment must be received by the Company.
In the event of an agency not paying an account by the due date, the Company reserves the right without prejudice to all its other rights:
- Not to accept further bookings from the Agency;
- To treat any amount due to the Company as a simple debt recoverable forthwith;
- To charge interest on all monies outstanding beyond the date for payment at a rate of 2% per month.
- The existence of a query in any individual item in an account will only affect the due date of payment of that individual item. The Agency or Advertiser must notify the Company of any query within seven (7) Working Days from receipt of the invoice. No spots may be brought into dispute by the Agency or Advertiser after this time. In the event of a query being resolved in favour of the Company, the item in query will be subject to the full rate of surcharge, subject only to the Company having dealt with the query with reasonable despatch.
- All payment accounts for advertising time placed shall be made in full and it shall not be open to the Agency or the Advertiser to make any deduction retention or to claim any rights of set off or to make any counterclaim in any proceedings brought by the Company in respect thereof
- Where appropriate all amounts payable will be rounded up to the nearest pound.
WARRANTIES AND INDEMNITY
- The Agency or the Advertiser as the case may be warrants and undertakes that:
- They will be responsible for obtaining and paying for all necessary licenses and consents for the transmission throughout the territory of any Advertising Copy or copyright material contained, or the appearances of any person in the Advertising Copy including also (but not limited to) music rights and performing rights. In addition, they will also be responsible for informing the Company in advance of transmission if a piece of commercially recorded music has been simultaneously commissioned for use a signature music for programmes or promotions.
- No Advertising Copy will breach the copyright, moral rights or other rights of any person or be defamatory of any third party;
- They will indemnify and keep the Company and/or Principal indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising from any breach and/or threatened breach of the above warranties or in any manner whatsoever in consequence of the use, recording or broadcasting in the form submitted or prescribed of any Advertising Copy or matter supplied by or transmitted for the Advertiser and/or Agency.
No Advertiser or Agency shall without the prior consent of the Company publish any information (including marketing or promotional materials) in connection with any Advertising Copy which has been transmitted or is scheduled for transmission which makes any reference to the Company.
CHANGE OF CONDITIONS
While every endeavour will be made to give two (2) weeks' notice in respect of changes of terms and conditions, the Company reserves the right to make such changes at shorter notice. Unless otherwise agreed between the parties in writing, in the event of such a change, the terms and conditions applicable shall be those in force at the time of transmission. The Advertiser or Agency shall (by serving written notice on the Company within one (1) week of receiving notice of such a change) be entitled to cancel any order for an advertisement to which the change of terms and conditions would otherwise be applicable.
CHANGE OF TIME SEGMENTS AND CLASSIFICATIONS
While every endeavour will be made to give seven (7) days notice in respect of any change of time segments and classifications, the Company reserves the right to make such changes at shorter notice. Unless otherwise agreed between the parties in writing in the event of such a change, the rate payable shall be at the rate in force at the time of the transmission after taking into account any such change.
Special rates and Conditions may be announced from time to time for particular programmes.
The Company shall have the right to audit the Advertiser's or Agency's records at its own cost at any time on reasonable prior written notice to ensure that payments are being made in accordance with any agreement for advertising Airtime based upon the share of the Advertiser or Agent's television advertising expenditure that it has agreed to commit in purchasing advertising Airtime sold by the Company. If any such audit reveals that the Advertiser or Agent has underpaid the Company by more than 3% of sums properly due, then the Advertiser or Agent shall pay to the Company forthwith the cost of the audit, together with the amount of the shortfall and interest thereon accruing daily at a monthly rate of 2% from the date when the sums were due until the date of actual payment. In the event of any shortfall being revealed which is less than 3% of sums properly due to the Company, the Advertiser or Agent shall forthwith make payment to the Company of the shortfall together with interest as aforesaid.
- Each party shall keep confidential all confidential information disclosed to it by the other whether relating to the Contract or otherwise relating to the content or operation of this agreement. Each party will only disclose confidential information to those of its employees, officers, approved sub-contractors and agents who (i) need to know it for the purpose of exercising or performing its rights and obligations under this agreement (ii) are informed of the confidential nature of the information divulged and (iii) agree to act in compliance with this agreement. Neither party will disclose that information to any third party (other than its employees, officers, approved sub-contractors and agents in accordance with this clause), except for information that:
- is already in the public domain at the time of disclosure;
- becomes publicly known through no fault of its own; or
- is acquired by that party from a third party without any breach of any obligation of confidence
- Notwithstanding any other provision of this agreement it shall not be a breach of this agreement for either party to disclose any information given to it in connection with this agreement pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with statutory power to require the disclosure of such information, provided that the affected party gives all reasonable notice of such disclosure to the other party.
If either party (the 'Affected Party') is prevented or delayed in whole or in part from complying with its obligations under this Agreement by reason of Force Majeure, it will notify the other party giving details thereof. The Affected Party will be relieved of its obligations under these Terms and Conditions to the extent that its performance is hindered or delayed by such Force Majeure event. If the event of Force Majeure continues for a period of more than 6 months, the other party shall be entitled to terminate the affected booking by notice in writing to the Affected Party. This termination will be subject to the Company's charges as set out in Condition 7b.
- The Advertiser or Agency may not assign, dispose of, hold on trust or part with the benefit or burden of any part of this Contract without prior written consent of the Company. For the avoidance of doubt, if the Company grants such consent the Advertiser or Agent shall nonetheless remain responsible for the performance of its obligations under this agreement.
- The Company shall be free to assign, sub-contract and otherwise deal freely with its obligations under this agreement.
This agreement shall be subject to English law and the non-exclusive jurisdiction of the English Courts.