1.1. In these Terms:
‘Agreement’ means this agreement for the provision of the Service;
‘Client’ means PRS Media Ltd, whose registered offices are at 15 Gateway Mews, Bounds Green, London N11 2UT
‘Charges’ means the charges shown in the Insertion Order or as otherwise agreed in writing between the parties;
‘Customer Lead’ means leads received by the Client from the Campaign as referred to in the Insertion Order;
‘Document’ includes, in addition to a document in writing, advert, plan, design, picture or other image, or any other record of any information in any form;
‘Duplicate’ means a duplicate customer lead received by the Client;
‘Input Material’ means any Documents, creative or other materials, and any data or other information provided by the Client relating to the Campaign;
‘Insertion Order’ means the sheet to which this Agreement is appended and contains details of the Service;
‘Invalid’ means any customer lead which is a Duplicate, Invalid or Fraudulent;
‘Output Material’ means any Customer Lead, documents or other materials, and any data or other information provided by the Publisher relating to the Campaign;
‘Service’ means the service to be provided by the Publisher for the Client as referred to in the Insertion Order;
‘Publisher’; means the organisation or person named on the Insertion Order for whom the Publisher has agreed to provide the Service in accordance with these Terms;
‘Working Day’ means any weekday, 9am to 5.30pm GMT, on which banks are open for business.
1.2. The headings in this Agreement are for convenience only and shall not affect their interpretation.
1.3. In the event of any conflict between the terms of this agreement and any prior written agreement executed by an authorised officer of both parties (“Prior Agreement”), which are not a previous version of these standard terms and conditions in substantially the same form, the terms of the current Agreement shall prevail.
2. SUPPLY OF THE SERVICE
2.1. The Publisher shall provide the Service as agreed by the Client subject to this Agreement. Any changes or additions to the Service or this Agreement must be agreed in writing by the Client.
2.2. The Client shall supply the Publisher with all necessary documents or other materials, and all necessary data or other information relating to the Campaign, within sufficient time to enable the Publisher to provide the Service in accordance with this Agreement. The Publisher shall ensure the accuracy of all Output Material and the terms of the Insertion Order (including any accompanying specification).
2.3. The Publisher shall retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Client shall have no liability for any such loss or damage, however caused.
2.4. The Service shall be provided in accordance with the Insertion Order.
2.5. Further details about the Service, and advice or recommendations about its provision or utilisation, which are not given in the Insertion Order, media plan or proposal, must be made available on request by the Client.
2.6. The Publisher must not amend any content in any brochure, promotional literature, quotation or other document relating to the provision of the Service without written consent from the Client.
2.7. The Publisher may at any time upon written consent from the Client, make any changes to the Campaign which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Service.
2.8. Any requests by the Client for modifications to any Campaign shall be made in writing to the Publisher at least two days prior to the scheduled delivery of the Campaign (or part thereof). The Publisher shall be liable in event that it is unable to implement such changes.
3. REPRESENTATIONS AND WARRANTIES
3.2 Publisher has obtained all necessary rights, consents, licences and clearances in relation to the disclosure, transfer or provision of the service, and has complied with all guidance of relevant regulatory bodies including the Information Commissioners Office (ICO).
3.3 The Publisher is registered with all relevant data protection legislation, including any directions issued by the ICO, and that the publisher has complied with all information requirements of the Electronic Commerce (EC Directive) Regulations 2002
3.4. Publisher will comply with all applicable laws, rules and regulations including, without limitation, the Privacy and Electronic Communications Regulations 2003, as amended from time to time (“PECR”). The Publisher represents and warrants that they shall at all times fully comply with all applicable statutes, rules and regulations with respect to the Provision of Service including without limitation, PECR, laws governing unfair, misleading and aggressive trade practices and/or online marketing and/or advertising.
3.5. Client agrees to provide details of such customer leads who have unsubscribed in conformance with PECR. Publisher agrees to: maintain similar suppression lists for opt-out requests that Publisher receives directly from its e-mail recipients; process all unsubscribe requests, no matter the source, within five (5) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such e-mail address(es) from its list and/or database; and either supply to Client daily-updated suppression lists or provide access to a secure password protected website where such information may be obtained. If Publisher fails, at any time, to supply Client with regular opt-out e-mail address updates Publisher agrees that Client may conclude that no new unsubscribe or opt-out requests have been received by Publisher. Publisher represents and warrants that it will use any suppression list for the sole purpose of removing any e-mail addresses contained therein from the applicable Publisher-owned and/or controlled mailing lists or to otherwise act to suppress from the receipt of future commercial e-mail messages such constituent e-mail addresses.
3.6 The provision of service supplied by the Publisher must not be defamatory or derogatory or offensive to the image pf the Client or Clients Website.
3.7 Client does not accept traffic from websites or website operators that produce or provide adult content. Publisher represents and warrants that the Publisher Websites shall not include nudity, partial nudity, adult language, defamatory statements, or content that is hostile, discriminatory, or offensive. Client does not accept Publishers that engage in, promote or facilitate illegal activities. Client may in its sole discretion refuse or restrict traffic from any Publisher Website(s) that it deems inappropriate. This Agreement is cancellable by Client immediately if Publisher fails to disclose, conceals or misrepresents itself in any way
3.8 Output Material supplied by the Publisher will be free from any worm, virus or any other virus or malicious computer code that could impair or injure any computer, person or entity.
3.9. Publisher has not been ‘blacklisted’ or otherwise prohibited or restricted from sending email communications to any email service provider or Internet service provider placed on any ‘spammer’ list.
4.1. The Client shall keep all records reasonable necessary to demonstrate the amount of Customer leads provided by the Publisher. Client records will be the final and official lead count by which invoices will be generated and paid. Subject to any special terms agreed, the Client shall pay the Charges and any additional sums which are agreed between the Publisher and the Client for the provision of the Service or which are required as a result of the Client’s instructions.
4.2. The price of the Services shall be the Clients quoted price or, where a quoted price is no longer valid, the price provided by the Client at the date of acceptance of the Insertion Order. All prices quoted are valid for up to seven days from the date of the Insertion Order or until earlier acceptance by the Publisher, after which time they may be altered by the Client upon prior written notice to the Publisher.
4.3. The Client reserves the right to change the price of the Service to reflect any change in cost to the Publisher.
4.4. All charges quoted by the Client for the provision of the Service are exclusive of any Value Added Tax,
4.5. The Publisher shall be entitled to invoice the Client following the end of each month in which the Service is provided, or at other times agreed with the Client on the Insertion Order.
4.6. The Charges and any additional sums payable shall be paid by the Client (together with any applicable Value Added Tax) within 30 days of receipt of the Publisher’s valid invoice as specified within the Insertion Order.
5. RETURNS POLICY
5.1 The Client may return and not be liable to pay for any Invalid, Duplicate or fraudulent Customer lead relating to the Service provided in the preceding month.
6. RIGHTS IN INPUT MATERIAL AND OUTPUT MATERIAL
6.1. The property and any copyright or other intellectual property rights in:
6.1.1 Any Input Material shall (subject to any such rights of any third party) belong (or continue to belong) to the Client;
6.1.2 Any Output Material shall, unless otherwise agreed in writing between the Client and the Publisher, belong to the Publisher. The Publisher agrees to assign to the Client with full title guarantee any such property, copyright or other intellectual property rights which it may have for further consideration.
7. LIABILITY AND INDEMNITY
7.1. The Publisher warrants to the Client that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Insertion Order and at the intervals and within the times referred to in the Insertion Order. Where the Publisher supplies in connection with the provision of the Service any Output Material supplied by a third party, the Publisher, guarantees the quality, fitness for purpose and adherence to the terms as stated in this contract and Insertion Order.
7.2. The Publisher shall be liable to the Client for loss, damage, costs, expenses or other claims for compensation arising from any Output Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival.
7.3. Except in respect of death or personal injury caused by the Client’s negligence, or as expressly provided in this Agreement, the Client shall not be liable to the Publisher by reason of any representation , or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Client, its employees or agents or otherwise) which arise out of or in connection with the provision of the Service or their use by the Publisher, and the entire liability of the Client under or in connection with the Agreement shall not exceed the amount of the Charges for the provision of the Service in the preceding three months.
7.4. The Client shall not be liable to the Publisher for any change in the law which may give rise to an obligation on the Publisher to include a statement or disclaimer as part of its Input Material. The Publisher shall exercise its reasonable endeavours to implement such additional wording as part of the Output Material as soon as it is received from the Client and shall be liable in the event that the Publisher is in breach of its obligations to implement such additional wording where sufficient notice has been given by the Client to the Publisher to implement such changes and the Publisher shall indemnify the Client in the event that the Publisher fails to make those amendments.
7.5. The Publisher shall indemnify the Client against any and all claims, demands, losses, damages, liabilities, costs, fines and expenses arising out of any breach by the Publisher of this Agreement.
8.1. All information disclosed by either party to the other in pursuance of or in connection with this Agreement shall be treated as confidential and each party undertakes not to disclose, publish or divulge any part thereof to any person other than its own employees, agents or representatives who are required to have such information for the performance of any of the obligations hereunder, except to the extent that it is now or subsequently through no fault of the party in question becomes public knowledge, or the party in question is required by law to disclose the information.
9. DATA PROTECTION
9.1. The Publisher is registered under the Data Protection Act 1998. The Publisher operates in accordance with this law and The Privacy and Electronic Communications (EC Directive) Regulations 2003.
10. TERMINATION AND CANCELLATION
10.1. Where expressly provided for in the Insertion Order the Client shall be entitled to terminate this Agreement by giving not less than 14 days written notice
10.2. Subject to clauses 9.1, the Publisher shall not be entitled to cancel this Agreement. No Insertion Order which has been accepted by the Publisher may be cancelled by the Publisher except with the agreement in writing of the Client and on terms that the Publisher shall indemnify the Client in full against all loss (including loss of profit), costs (including the cost of all labour and services purchased on behalf of the Client), damages, charges and expenses (including legal fees and disbursements) incurred by the Client as a result of cancellation.
10.3. Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if the other commits any breach of this Agreement and fails to remedy the breach (if capable of remedy) within thirty days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, ceases (or threatens to cease) trading, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed over its assets.
10.4. In the event of termination pursuant to this clause, then without prejudice to any other right or remedy available to the Publisher, the Publisher shall be entitled to stop any Service under way or suspend any further Service.
11.1. Subject to clause 1.3, this Agreement (together with the terms, if any, set out in the Insertion Order) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
11.2. A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and shall be deemed to have been received, in the case of service by:
11.2.1. hand, upon delivery to an authorised representative of the recipient;
11.2.2. Post, two Working Days (or five Working Days if internationally) after posting; and
11.2.3. fax or email, upon the printing or receipt of a successful delivery report to the recipient's fax machine or server, provided a hard copy shall also be sent by first class post to the other party within twenty-four hours of transmission.
11.3. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4. If any provision of this Agreement shall be held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.
11.5. Any dispute arising under or in connection with this Agreement or the provision of the Service shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the president for the time being of the Advertising Standards Authority.
11.6. The Client shall not be liable to the Publisher or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Clients obligations in relation to the Service, if the delay or failure was due to any cause beyond the Publisher’s reasonable control (‘Force Majeure’). Without prejudice to the generality of the foregoing, the following shall be regarded as Force Majeure events:
11.6.1. Act of God, explosion, flood, tempest, fire or accident;
11.6.2. War or threat of war, sabotage, insurrection, civil disturbance or requisition;
11.6.3. Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
11.6.4. Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Publisher or of a third party);
11.6.5. Power failure or breakdown in machinery.
11.7. The party affected by the Force Majeure event shall give immediate written notice of that fact to the other party, and if the Force Majeure event exceeds a period of sixty days, the party affected by the Force Majeure event may terminate the Agreement forthwith by written notice.
11.8. The Client agrees that the Publisher may cite the Client as a client of the Publisher in press releases and marketing material with written consent by the Client.
11.9. English law shall apply to this Agreement, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.