General Terms And Conditions Of Radio Advertising
These terms govern the supply of digital and audio advertising services by the relevant Tindle Radio Channel Islands company identified in the Order Confirmation.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these terms.
1.1. Definitions:
“Advertisement”: a digital, audio (including radio) or other advertisement (including a sponsorship, commercial activation or other similar arrangement) that forms part of the Campaign.
“Advertiser”: the person that is the manufacturer, supplier, owner or distributor (as applicable) of the product, service or brand that is being promoted in the Campaign.
“Advertising Specifications”: the Supplier’s advertising specifications notified to the Buyer or Advertiser from time to time.
“Applicable Law”: all laws, regulations, codes, practices, standards and guidance (including those promulgated by Ofcom, the JCRA, the GCRA, Radiocentre and Advertising Standards Authority) in force or applicable in any jurisdiction in which the Advertisements will be distributed or accessible.
“Asset Delivery Deadline”: the latest date by which the Buyer must give the Supplier full instructions and all Assets required for delivery of the Campaign (including, for audio Advertisements, rotation details and any required compliance approval) being: (a) for Digital Advertisements, 10 Business Days before the Campaign Start Date and (b) for audio Advertisements, if: (i) the Assets comprise the complete Advertisement, three Business Days before the Campaign Start Date; and (ii) the Supplier is responsible for developing and creating the Advertisement, one Business Day before the Campaign Start Date.
“Assets”: creative material provided to the Supplier by or on behalf of the Buyer or Advertiser for the Campaign, including artwork, talent contributions, music, copy, fonts, text, audio, graphics and digital files, brands and entire Advertisements.
“Audience Profile”: a designated category of user with similarities in preferences as determined and identified through their internet browsing habits through the use of cookies, tags or other mechanisms.
“Supplier”: the Tindle Radio Channel Islands entity specified in the Order Confirmation, being Channel Radio Limited for a Campaign contracted through its Jersey operation (comprising Channel 103 and Soleil Radio) or Island FM Limited for a Campaign contracted through its Guernsey operation (trading as Island FM).
“Supplier Material”: creative material used in connection with the Campaign that belonged to the Supplier or its licensors prior to the date of the Contract or that is otherwise developed by the Supplier or its licensors independently of the Campaign.
“Branded Content”: an Advertisement that incorporates Supplier branding, including sponsorship and promotions.
“Branded Content Terms”: any additional sponsorship or promotion terms supplied to the Buyer in writing before the Contract is made.
“Business Day”: a day, other than a Saturday, Sunday or public holiday, on which banks are generally open for business in the island in which the Supplier is incorporated.
“Buyer”: the person placing the order with the Supplier for delivery of the Campaign in the course of business. Such person may be the same person as the Advertiser or may be an agency or media buyer representing the Advertiser.
“Campaign”: a promotional campaign comprising the delivery of one or more Advertisements in accordance with an Order Confirmation.
“Campaign Delivery Report”: a report setting out: (a) the number of Impressions served to a particular Digital Product or Audience Profile; and (b) such other data as specified in the Order Confirmation. The Campaign Delivery Report will normally specify the number of times a user has clicked on the Advertisement(s) and the click through rate (calculated by taking the number of click-throughs divided by the recorded number of Impressions x 100).
“Campaign Material”: creative material developed by or on behalf of the Supplier for the Campaign.
“Campaign Start Date”: the start date of the Campaign as detailed in the Order Confirmation or, if not so detailed, the date on which the first Advertisement for the Campaign is uploaded, broadcast, published or otherwise communicated to the public.
“Contract”: subject to clause 2.2, these terms together with the terms set out in the Order Confirmation.
“Digital Advertisement”: any display advertising, promotional material, sponsorship activation or similar material (including banners and home page takeovers) delivered on any website, mobile application or social media platform.
“Digital Product”: any digital product, including a website, digital publication, mobile application, podcast and audio-stream.
“Fees”: the amounts payable by the Buyer for the Campaign, including any creative services provided in respect of it, as specified in the Order Confirmation or, in the absence of such specification, as calculated in accordance with the Supplier’s standard rate card at the relevant time.
“Impacts”: the gross number of opportunities to hear (“OTH”) an Advertisement, calculated by multiplying the total reach of a Campaign by the average OTH as determined using RAJAR data.
“Impressions”: the metric describing the number of times a Digital Advertisement is displayed on users’ screens.
“Intellectual Property Rights”: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
“Order Confirmation”: a confirmation provided by the Supplier to the Buyer (whether in the form of a series of emails or an electronic or other document (whether described as an “Insertion Order”, “I/O”, “Sales Order Form”, “Order Confirmation”, “Prepay Option Confirmation & Proforma” or otherwise) or in another written form) confirming the details of the Campaign.
“Spots”: spots for an Advertisement (within a commercial break) on a radio station.
“Term”: the meaning given in clause 2.1.
1.2. A “person” includes a natural person and an incorporated or unincorporated body (whether or not having separate legal personality).
1.3. A reference to legislation or a legislative provision: (a) is a reference to it as amended, extended or re-enacted from time to time; and (b) includes all subordinate legislation made from time to time under that legislation or legislative provision.
1.4. A reference to “writing” or “written” includes email.
1.5. Any words following “including”, “include”, “in particular”, “for example” or any similar expression will be interpreted as illustrative and will not limit the sense of the words preceding them.
2. BASIS OF CONTRACT
2.1. The Contract commences on the earlier of the Campaign Start Date and the date on which the Supplier provides the Order Confirmation to the Buyer for the Campaign (either of which constitutes acceptance by the Supplier of the Buyer’s offer to conduct the Campaign), and continues until delivery of the final Advertisement of the Campaign (“Term”).
2.2. If an Advertisement constitutes Branded Content, then, in addition to these terms, the Branded Content Terms apply to that Advertisement and form part of the Contract.
2.3. To the extent of any inconsistency among them, the following order of priority applies: (a) the Order Confirmation; (b) if applicable, the Branded Content Terms; and (c) these terms.
2.4. These terms apply to the Contract to the exclusion of any other terms that the Buyer (or Advertiser) seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document of the Buyer (or Advertiser) that is inconsistent with these terms.
3. THE CAMPAIGN
3.1. The Supplier shall deliver the Campaign in accordance with the Order Confirmation.
3.2. This clause 3.2 relates to Digital Advertisements only.
3.2.1. If the Campaign is for delivery of a stated number of Impressions to a specified Audience Profile, the Supplier may deliver the Campaign on Digital Products operated by it and members of its group and on Digital Products operated by third parties. The Supplier is not responsible for a Digital Advertisement being served on a Digital Product that the Buyer is not expecting or to which it objects (unless such Digital Product is materially inconsistent with the applicable Audience Profile, as set out in the Order Confirmation).
3.2.2. Once the Campaign has ended, the Supplier shall, if requested, provide the Buyer with a Campaign Delivery Report. The Supplier’s Campaign Delivery Report will be the definitive measurement of the number of Impressions delivered for the Campaign and will be binding on the parties, unless the parties agree in writing to use an alternative Campaign Delivery Report for that purpose.
3.2.3. If the agreed Campaign Delivery Report indicates that the Supplier has under-delivered the agreed number of Impressions, the Supplier may: (a) reasonably extend the term of the Campaign to enable delivery of the agreed number of Impressions; or (b) reduce the Fees (on a pro-rata basis) so that they reflect the agreed number of Impressions. If the Supplier does so, the Buyer will have no further claim against the Supplier in respect of under-delivery of the Impressions.
3.2.4. The Buyer accepts that, where the agreed Campaign Delivery Report is not provided by the Supplier, it may show statistics that differ from those in the Supplier’s Campaign Delivery Report. In that case, the Supplier: (a) may query the correctness of that agreed Campaign Delivery Report and the parties shall act in good faith to verify the correctness of that agreed Campaign Delivery Report; and (b) will not be obliged to reconcile under-delivered Impressions unless the discrepancy is over 10%.
3.3. If the Supplier has guaranteed an agreed number of Impacts or Impressions for an audio Campaign against a specific audience or an agreed number of Spots, the Supplier shall deliver the agreed number of Impacts or Impressions against that audience or agreed number of Spots (as applicable), plus or minus 5%. If the Supplier fails to deliver the agreed Impacts, Impressions or Spots, the Supplier shall make good the shortfall in another audio campaign (and such make good will be the Buyer’s sole remedy).
4. ASSET DELIVERY
4.1. The Buyer shall deliver the Assets to the Supplier by the Asset Delivery Deadline.
4.2. The Buyer shall ensure that the Assets comply with the Advertising Specifications, are in the format and style specified in the Order Confirmation and are as otherwise specified by the Supplier.
4.3. If the Buyer fails to deliver the Assets by the Asset Delivery Deadline or in compliance with the Advertising Specifications:
4.3.1. such failure may result in a delay or failure to deliver the Campaign, for which the Supplier will not be liable;
4.3.2. the Buyer will remain liable to pay the Fees;
4.3.3. without limiting the foregoing, the Supplier may use any other assets previously supplied by the Buyer.
4.4. For Digital Advertisements, if Assets are delivered to the Supplier after the Asset Delivery Deadline but by midday on the Business Day before the Campaign Start Date, the Supplier may reduce pro rata the number of agreed Impressions to be delivered for each day that the Assets are later than the Asset Delivery Deadline and the Buyer will remain obligated to pay the Fees. For example, if the Campaign is scheduled to run for 20 days and the number of Impressions ordered is 100,000 then, if the Assets are delivered two days after the Asset Delivery Deadline, the Supplier may deliver 90,000 Impressions, rather than 100,000. However, the Buyer shall pay for the full 100,000 Impressions.
4.5. Notwithstanding any other provision of the Contract, if the Supplier requires the Buyer to amend any Assets, the Buyer shall promptly provide such amended Assets to the Supplier and, in any case, before the Asset Delivery Deadline.
4.6. The Supplier will not be liable for loss of or damage to any Assets.
4.7. The Supplier may delete or destroy Assets in its possession after three months from the date of their last use by the Supplier.
5. CREATIVE SERVICES
5.1. This clause 5 applies to creative services provided by the Supplier in connection with the Campaign.
5.2. If specified in the Order Confirmation, the Supplier shall develop Campaign Material for the Advertisements (including, if appropriate, incorporating Supplier Material) and:
5.2.1. the parties shall cooperate in good faith to determine the concept for such Campaign Material prior to the Campaign Start Date;
5.2.2. The Supplier shall develop such Campaign Material in accordance with its house style, unless otherwise agreed in the Order Confirmation;
5.2.3. The Supplier shall consult with the Buyer at all material stages of the development process; and
5.2.4. The Supplier shall provide the draft Campaign Material to the Buyer prior to the Campaign Start Date or as otherwise agreed.
5.3. For draft Campaign Material provided under clause 5.2.4, the Buyer shall check its correctness and factual accuracy and that it complies with the Advertiser’s requirements and Applicable Law. The Buyer shall communicate its approval or non-approval (such approval not to be unreasonably withheld), with any requested changes to be notified in writing within, for Digital Advertisements, 48 hours and, for audio Advertisements, five Business Days of receiving such draft Campaign Material. Failure to communicate within the relevant timeframe will constitute approval by the Buyer.
5.4. The Supplier may charge the Buyer additional production charges for changes to draft Campaign Material that the Supplier, in its discretion, considers excessive in number or for any requested changes that are materially different to a previously agreed concept or the details set out in the Order Confirmation. Notwithstanding the foregoing, the Supplier shall use reasonable efforts (subject to clause 5.2.2 and restrictions imposed by Applicable Law) to promptly comply with the Buyer’s requested changes. Once approved, the Supplier shall make no changes to the Campaign Material without seeking further approval from the Buyer in accordance with clause 5.3.
5.5. The Buyer acknowledges that the Supplier may use AI tools to support the creative services provided by it.
6. WARRANTIES AND REPRESENTATIONS
6.1. Each party warrants and represents that it: (a) is entitled to enter into the Contract and to grant the rights and perform the obligations as set out in it; and (b) will perform its obligations under the Contract in accordance with Applicable Law, including those laws relating to anti-bribery, anti-corruption and anti-money laundering, and reasonably accepted industry practice.
6.2. The Buyer warrants and represents that:
6.2.1. it enters into the Contract as principal (notwithstanding that it may act as agent for the Advertiser) and, if applicable, is authorised by the Advertiser to do so;
6.2.2. each Advertisement complies with Applicable Law (and the Buyer acknowledges that such compliance is a condition of acceptance of each Advertisement);
6.2.3. no Advertisement will constitute a libel or slander, be offensive or indecent or promote discrimination based on sex, race, religion, disability or age;
6.2.4. it has obtained or will obtain all clearances, including all music rights (and has paid or will pay all associated costs, royalties and expenses) necessary for the exploitation of the Assets by the Supplier in connection with the Campaign;
6.2.5. The Supplier’s use of the Assets in connection with the Campaign will not violate or infringe any person’s Intellectual Property Rights, rights of personality, rights of privacy or other proprietary rights;
6.2.6. all information contained in the Assets or otherwise provided to the Supplier in connection with the Campaign is accurate, complete and true at all relevant times;
6.2.7. the Assets do not contain any: (a) virus or other form of malicious code; or (b) defect that could damage or otherwise impair any software or hardware; and
6.2.8. for audio Advertisements, where the Assets comprise the complete Advertisement, it has obtained any compliance approval required by the Supplier or Applicable Law.
6.3. The Supplier warrants and represents that the use by the Buyer of the Supplier Material and the Campaign Material in connection with the Campaign will not infringe the rights of any person.
7. DATA PROTECTION
7.1. For the purposes of the Data Protection Legislation, the parties acknowledge and agree that they are separate and independent controllers of any Personal Data that is shared between them or otherwise processed by or on their behalf under the Contract (“Contract Personal Data”). Each party shall independently determine the manner and purpose of the processing of the Contract Personal Data and comply with all relevant legislation and regulations governing the processing and transfer of Personal Data.
7.2. Each party shall notify the other promptly (and provide reasonable and timely assistance, information and co-operation where requested) if it: (a) receives or becomes aware of any claim, complaint, query and/or request to exercise rights by a Data Subject under the Data Protection Legislation in relation to the Contract Personal Data in whole or in part; (b) receives or becomes aware of any investigation or enforcement activity by a Supervisory Authority or any other relevant regulator in relation to the Contract Personal Data in whole or in part; or (c) becomes aware of a suspected or actual Personal Data Breach affecting the Contract Personal Data in whole or in part.
7.3. If the Buyer (or Advertiser) wishes to drop cookies on users’ computers or use pixels, web beacons or other data collecting technology (“Data Collecting Technology”) for the purpose of displaying or providing advertising and tracking Impressions, analytics, measurement or verification of the Campaign (together, “Analytics Data”), the Buyer shall notify the Supplier in advance and provide comprehensive information relating to such Data Collecting Technology in advance of implementing it, including (in the case of cookies) their name, type, purpose, whether they will be used for targeted advertising, what data they will collect, whether they are linked to other data the Buyer already holds about the user, their expiry date, how to disable them and such other information as the Supplier may reasonably request.
7.4. The Buyer shall (and, if relevant, shall procure that the Advertiser shall) comply with all Applicable Law with respect to Data Collecting Technology and delete all Analytics Data within 30 days of the end of the Term.
7.5. If the Buyer (or the Advertiser) shares any Contract Personal Data with the Supplier, the Buyer shall ensure there is a lawful basis to do so and the Supplier is permitted to lawfully use such Contract Personal Data for the purpose for which it is shared and otherwise in accordance with the Contract. The Buyer warrants and represents that any such Contract Personal Data has been collected lawfully and can be shared with and used lawfully by the Supplier to deliver the Campaign.
7.6. The Buyer shall (or, if applicable, procure that the Advertiser shall) enter into additional agreements or implement additional measures where required under the Data Protection Legislation, or where reasonably requested by the Supplier, in respect of the Contract Personal Data. For example, the Buyer shall (or, if applicable, procure that the Advertiser shall): (a) enter into a data processing agreement with the Supplier (on such terms as the Supplier may reasonably require) where it is determined that the relevant relationship is that of Controller and Processor; (b) enter into a data sharing agreement with the Supplier (on such terms as the Supplier may reasonably require) where it is determined that the relevant relationship is that of joint Controllers, or where the nature of the data sharing requires a detailed arrangement to be agreed; and (c) implement any additional safeguards required in respect of international data transfers.
7.7. The following definitions apply in this clause 7.
7.7.1. “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “Supervisory Authority”: as defined in the Data Protection Legislation.
7.7.2. “Data Protection Legislation”: all data protection and privacy legislation and regulatory requirements applicable from time to time to a party or to the Campaign, including, as applicable, the Data Protection (Jersey) Law 2018, the Data Protection Authority (Jersey) Law 2018 and the Data Protection (Bailiwick of Guernsey) Law 2017, together with any subordinate legislation made under them and any applicable rules concerning electronic communications, direct marketing, cookies and similar technologies.
8. INDEMNITY
8.1. In this clause 8, losses suffered or incurred by the Supplier include losses suffered or incurred by another member of the Supplier’s group, and the Supplier may recover those losses from the Buyer as if the Supplier had suffered or incurred them itself.
8.2. The Buyer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
8.2.1. the Buyer’s breach or non-performance of any obligation, warranty or promise given under the Contract;
8.2.2. the enforcement of the Contract;
8.2.3. any claim made against the Supplier for actual or alleged infringement of a person's Intellectual Property Rights, rights of personality, rights of privacy or other proprietary rights arising out of or in connection with the Supplier’s use of the Assets; and
8.2.4. if the Buyer acts as agent for the Advertiser, any claim by the Advertiser against the Supplier, including any claim concerning the Buyer not being properly authorised to do so.
8.3. The indemnity under this clause 8 will not cover the Supplier to the extent that a claim under it results from the Supplier's negligence or wilful misconduct.
8.4. If a payment due from the Buyer under this clause 8 is subject to tax (whether by way of direct assessment or withholding at its source), the Buyer shall remit to the Supplier such amounts as will ensure that the net receipt, after tax, to the Supplier in respect of the payment is the same as it would have been if the payment was not subject to tax.
8.5. Nothing in this clause 8 restricts or limits the Supplier's obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
9. FEES AND PAYMENT
9.1. The Supplier shall invoice the Buyer as specified in the Order Confirmation or, in the absence of such specification, prior to the end of the calendar month in which the Contract commences.
9.2. If the Fees for a Digital Advertisement are calculated based upon an agreed CPM, the Supplier may pro-rate the amount invoiced accordingly.
9.3. The Buyer shall pay each invoice issued by the Supplier in full (without any set-off, counterclaim, deduction or withholding, other than any deduction or withholding of tax required by law) and in cleared funds by electronic transfer or direct debit to a bank account nominated by the Supplier: (a) before the Campaign Start Date; or (b) if the Supplier has extended credit to the Buyer, within 30 days of the date of the invoice.
9.4. Time for payment is of the essence of the Contract.
9.5. All amounts payable by the Buyer under the Contract are exclusive of any goods and services tax or other sales or consumption tax chargeable on the supply. Where such tax is chargeable, the Buyer shall pay it to the Supplier at the same time as payment is due for the relevant supply.
9.6. Without prejudice to the Supplier’s other rights and remedies, if the Buyer fails to make a payment due under the Contract by the applicable due date: (a) the Supplier may refuse to broadcast, publish or otherwise communicate any Advertisement without liability to the Buyer; and (b) the Buyer shall pay: (i) interest on the overdue sum from the due date until payment, whether before or after judgment, accruing daily at 8% a year or, if lower, the maximum rate permitted by Applicable Law; and (ii) the Supplier’s reasonable costs of recovering the overdue sum, including reasonable debt-collection and legal costs, to the extent permitted by Applicable Law.
9.7. The Buyer acknowledges that the Fees are applicable to the Campaign only and are not indicative of fees that the Supplier may charge in respect of any other advertising campaign. For print Advertisements only, the Supplier may, without notice to the Buyer and at any time, change the Fees and, if the Supplier increases the Fees prior to publication, the Buyer may: (a) terminate the Contract by providing written notice to the Supplier; or (b) continue the Contract at the revised Fees.
9.8. As part of its normal business procedures, the Supplier may make searches of or enquiries about the Buyer using the services of credit reference agencies. The Buyer acknowledges that such searches and other enquiries may be made and that agencies may keep copies of the results of such searches and other enquiries, which may be shared with other persons.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Intellectual Property Rights in the Supplier Material will at all times remain the property of the Supplier or its licensors (as applicable) and nothing in the Contract will be construed as an assignment of such Intellectual Property Rights. All goodwill and other rights arising out of the use of such Intellectual Property Rights will accrue to the benefit of the Supplier or its licensors (as applicable).
10.2. Intellectual Property Rights in the Assets will at all times remain the property of the Buyer, Advertiser or their licensors (as applicable) and nothing in the Contract will be construed as an assignment of such Intellectual Property Rights. All goodwill and other rights arising out of the use of such Intellectual Property Rights will accrue to the benefit of the Buyer, Advertiser or their licensors (as applicable).
10.3. The Buyer (on behalf of itself or the Advertiser, as applicable) grants to the Supplier a non-exclusive, royalty-free, irrevocable licence of the Intellectual Property Rights in the Assets: (a) during the Term, to use and reproduce, broadcast, publish and communicate to the public and incorporate with the Supplier Material and Campaign Material the Assets for any purpose in connection with the Supplier’s fulfilment of its obligations under the Contract; and (b) in perpetuity, to store and reproduce the Assets for internal purposes and to promote its advertising services to other potential advertisers, including through the creation of case studies and sizzle reels.
10.4. To the extent an Advertisement contains Supplier Material, the Supplier grants to the Buyer (solely for the benefit of the Advertiser) a non-exclusive, royalty-free, irrevocable, perpetual licence of the Intellectual Property Rights in the Supplier Material to reproduce the Supplier Material, as contained in the Advertisement, for its internal and non-commercial purposes, subject to any third-party restrictions notified to the Buyer.
11. CANCELLATION OR MATERIAL CHANGE
11.1. If the Buyer wishes to cancel or materially change one or more elements of the Campaign, the Buyer must provide the Supplier with written notice no later than, for: (a) audio and digital elements, 28 Business Days prior to the Campaign Start Date; and (b) print elements, 14 Business Days prior to the date on which a weekly print publication goes on sale and 28 Business Days prior to the date on which a fortnightly or monthly print publication goes on sale. If such a notice is received prior to the applicable deadline, the Buyer will: (c) only be liable to pay the Fees for services the Supplier has rendered prior to receipt of the notice; and (d) be entitled to a refund for any other portion of the Fees paid by the Buyer for the Campaign or part of it (as applicable).
11.2. The Supplier may alter its radio programming schedule and its on-air talent over holiday periods and, if it does so, it shall use reasonable efforts to give the Buyer prior notice and, notwithstanding such alteration, deliver the agreed number of Impacts.
11.3. Any request by the Buyer to cancel or materially change one or more elements of the Campaign that is received after the applicable deadline specified in clause 11.1 will not (even if followed by the Supplier) affect the Buyer's liability to pay the Fees.
11.4. The Supplier may change: (a) the date on which any print publication goes on sale; and (b) the position in which any print Advertisement appears, without notice to the Buyer.
11.5. The Supplier may withdraw or adjust any discount given to the Buyer for the Campaign if the Campaign is not completed because it is (wholly or partly) cancelled pursuant to clause 11.1.
11.6. Without limiting the Supplier’s other rights under the Contract, the Supplier may, without liability to the Buyer and without prejudice to its right to be paid in full for the Campaign, suspend, cancel or refuse to accept one or more Assets, Advertisements or other elements of the Campaign by notice to the Buyer if: (a) the Supplier considers it is appropriate to do so to: (i) comply with any legal obligation or ethical or moral responsibility; (ii) avoid the breach or potential breach of Applicable Law, the Advertising Specifications or any of the Supplier’s internal policies or brand guidelines or infringement of the rights of any person; (iii) avoid or remedy the risk of bringing the Supplier or any of its print publications, radio stations or Digital Products into disrepute or harming its or their reputation; or (iv) avoid any promotion of or association with a competitor of the Supplier; or (b) the Supplier, acting reasonably, otherwise considers it is appropriate to do so.
12. COMPLAINTS AND ERRORS
12.1. The Supplier is not responsible for:
12.1.1. checking the correctness of any Advertisement or that an Advertisement fulfils the Buyer’s requirements or expectations;
12.1.2. any error (or the repetition of any error) in an Advertisement that has been approved by the Buyer or that remains in the form it is received by the Supplier from the Buyer;
12.1.3. the positioning of the Advertisement, subject to any positioning requirements specified in the Order Confirmation;
12.1.4. in respect of a print Advertisement: (a) the distribution of any print publication in a specific geographic area; (b) the quality of reproduction of the Advertisement; (c) any loss caused by any delay or failure by the Supplier to distribute a print publication on the scheduled on-sale date, or the suspension or cessation of any print publication; (d) any “live” matter trimming off outside the type areas set out in the Advertising Specifications; or (e) the repetition of any error in an Advertisement ordered for more than one insertion;
12.1.5. the technical failure of any Digital Product;
12.1.6. its acts and omissions caused by anything beyond the Supplier’s reasonable control; or
12.1.7. any failure to comply with its obligations under the Contract due to the act or omission of any third party, subcontractor or service provider or to the extent that such failure is a direct result of any act or omission of the Buyer.
12.2. The Supplier will not be liable in respect of any complaint, claim or query (whether in relation to an Advertisement, the Campaign as a whole, an invoice or otherwise) unless the Buyer raises it with the Supplier in writing within:
12.2.1. for an invoice, ten days from the date on which the Buyer receives it;
12.2.2. for a Digital Advertisement, 30 Business Days from the date on which it was or should have been communicated to the public;
12.2.3. for an audio Advertisement, ten Business Days from the date on which it was or should have been broadcast; and
12.3. The raising of a complaint, claim or query will not relieve the Buyer of its obligation to pay the Fees.
12.4. Subject to clause 12.1.2, if an Advertisement contains an error and such error is caused by the Supplier, the Supplier’s liability will be limited at its discretion to:
12.4.1. reducing the Fees by an amount pro-rated to reflect the affected part of the Campaign; or
12.4.2. if the Buyer has already paid the Fees associated with the affected part of the Campaign: (a) delivering a corrected Advertisement and (if applicable) extending the term of the Campaign to the extent necessary to enable delivery of the agreed number of Impressions; or (b) crediting the Buyer an amount equal to such Fees, provided that, if the Buyer fails to notify the Supplier of the error within the applicable timeframe specified in clause 12.2, the Supplier will have no liability for the error.
13. LIMITATION OF LIABILITY: THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1. References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2. Nothing in the Contract limits any liability that cannot legally be limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.
13.3. Subject to clause 13.2, the Supplier’s total liability to the Buyer in respect of the Campaign will not exceed an amount equal to the total Fees payable in respect of it.
13.4. The cap on the Supplier's liabilities will be reduced by: (a) payment of an uncapped liability; and (b) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
13.5. The Supplier will not be liable to the Buyer: (a) if the success of the Campaign is less than anticipated; or (b) for any failure to comply with its obligations under the Contract, to the extent such failure is a direct result of any act or omission of the Buyer.
13.6. Subject clause 13.2, the following types of loss are wholly excluded: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
13.7. If an Advertisement relates to mail order sales and the Supplier so requests, the Buyer shall provide to the Supplier an undertaking, in such form and executed by such persons as the Supplier may require, accepting all liability for orders placed by mail order in connection with that Advertisement.
14. FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (including, in the Supplier’s case, for any failure to deliver the Campaign on account of: (a) corruption, interruption, virus or malfunction of a website or other digital platform, advertising exchange or ad-server; (b) failure or interruption of broadcast services; (c) the act or omission of any third party, subcontractor or service provider; or (d) any editorial position adopted by the Supplier in response to a significant event, including the death of a member of the Royal family or a declaration of war or national emergency). The time for performance of such obligations will be extended accordingly. If the period of delay or non-performance continues for four weeks, the party not affected may terminate the Contract by giving five Business Days' written notice to the affected party.
15. TERMINATION
15.1. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.1.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of being notified in writing to do so;
15.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.1.3. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
15.1.4. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.2. Without limiting its other rights or remedies, the Supplier may suspend the Campaign and its performance of any of its obligations under the Contract if the Buyer becomes subject to any of the events listed in clause 15.1.2 to 15.1.4, or the Supplier reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under the Contract on the due date for payment.
15.3. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer:
15.3.1. if there is a change in the person or persons who directly or indirectly control the Buyer or Advertiser and, following that change, the Buyer or Advertiser is controlled by a competitor of the Supplier;
15.3.2. if the Supplier considers or suspects that the Buyer no longer has (or is likely to imminently lose) its authority to act on behalf of the Advertiser. The Buyer shall notify the Supplier as soon as reasonably possible after becoming aware that it is likely to lose such authority. If, at the date of termination under this clause 15.3.2, the Campaign has not been delivered in full, the Buyer shall use reasonable efforts to promptly procure that the Advertiser (or any new agency the Advertiser engages) signs a new agreement with the Supplier for delivery of the remainder of the Campaign on the terms of the Contract; or
15.3.3. at any time and for any reason by serving 30 days’ written notice on the Buyer.
15.4. If either party cancels the whole of the Campaign in accordance with clause 11, the Contract will, without limitation to the parties’ other rights and remedies, terminate with immediate effect without the need to give further notice.
15.5. On termination of the Contract, the Buyer shall immediately pay to the Supplier all of the Buyer's outstanding unpaid invoices and interest and, in respect of parts of the Campaign supplied but for which no invoice has been issued, the Supplier shall issue an invoice, which shall be payable by the Buyer promptly on receipt.
15.6. The Supplier may withdraw or adjust any discount given to the Buyer for the Campaign if it is not completed because the Supplier terminates the Contract for default by the Buyer.
15.7. Termination of the Contract will not affect either party’s rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
15.8. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
16. CONFIDENTIALITY
16.1. Each party shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 16.2.
16.2. Each party may disclose the other party's confidential information: (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising that party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 16; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. The Supplier may disclose confidential information to members of its group to the extent reasonable in connection with them exercising rights under clause 8.
16.3. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17. GENERAL
17.1. The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
17.2. The Contract constitutes the entire agreement between the parties in relation to its subject matter.
17.3. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
17.4. No variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.5. A waiver of any right or remedy is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
17.6. A delay or failure to exercise, or the single or partial exercise of, any right or remedy will not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.7. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract.
17.8. If any provision or part-provision of the Contract is deemed deleted under clause 17.7, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.9. No person who is not a party to the Contract has any right to enforce any term of the Contract.
17.10. The Contract and any dispute or claim (including a non-contractual dispute or claim) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with: (a) Jersey law, where the Supplier is Channel Radio Limited; or (b) Guernsey law, where the Supplier is Island FM Limited.
17.11. The courts of the island whose law applies under clause 17.10 shall have exclusive jurisdiction to settle any dispute or claim (including a non-contractual dispute or claim) arising out of or in connection with the Contract or its subject matter or formation.
18. TAX
18.1. All rates exclude tax (VAT in the UK, GST in Jersey) which will be charged at the rate prevailing at the tax point. No GST is applicable in Guernsey.