Advertising sales general terms and conditions
RAIL PROFESSIONAL LTD
"RAIL PROFESSIONAL" means Rail Professional Limited.
"AGREEMENT TO BOOK ADVERTISING SPACE" means the instruction received in writing from an advertiser.
1.3 "RAIL PROFESSIONAL Publication" means the publication or any other media or associated services specified in the Agreement to Book Advertising Space.
1.4 "Advertisement" means a magazine advertisement, loose or bound-in insert, product card, web advertisement or any other type of sponsorship or advertising which an Advertiser agrees to buy from RAIL PROFESSIONAL.
1.5 "Advertiser" means the person, firm, corporation and/or the agent thereof from whom RAIL PROFESSIONAL receives an Agreement to Book Advertising Space.
1.6 "Copy Change" means a change to the content of an Advertisement but not to its size or shape or to its colour makeup.
1.7 "Conditions" means these Terms and Conditions and any changes agreed in Writing by the publisher of the relevant RAIL PROFESSIONAL Publication or a Director of RAIL PROFESSIONAL LIMITED.
1.8 "Contract" means the legally binding agreement governing an Advertisement and comprising the Conditions and the information about the Advertisement in the relevant Agreement to Book Advertising Space.
1.9 "Copy Date" means the date shown in the Agreement to Book Advertising Space as the last date for receipt of copy or, if none, in the current Media Pack for the relevant RAIL PROFESSIONAL Publication.
1.10 "Media Pack" means the media pack whether printed or digital in effect for the time being for the relevant RAIL PROFESSIONAL Publication and may include, among other things, its rate card, mechanical and technical specifications and copy and cancellation deadlines.
1.11 "Writing" means any written communication including letter, fax, e-mail and all similar means of communication.
1.12 "Party" shall mean either RAIL PROFESSIONAL or the Advertiser, and "Parties" shall mean RAIL PROFESSIONAL and the Advertiser together.
1.13 "Publisher" shall mean the responsible person appointed by RAIL PROFESSIONAL to oversee the publishing of a RAIL PROFESSIONAL Publication.
2 BASIS OF CONTRACT
2.1 An Advertisement is accepted on the understanding that the relationship between the Advertiser and RAIL PROFESSIONAL is governed by these Conditions. Unless specifically approved in Writing by the Publisher of the relevant RAIL PROFESSIONAL Publication or by a RAIL PROFESSIONAL Director, the conditions stipulated on an Advertiser's order form or anywhere else shall be void.
2.2 Any variation to these Conditions (including any special terms and conditions agreed between the Parties) shall apply only if agreed and confirmed in Writing by the Publisher of the relevant RAIL PROFESSIONAL Publication or by a RAIL PROFESSIONAL Director.
2.3 The issue of an Agreement to Book Advertising Space shall amount to an offer by Advertiser to RAIL PROFESSIONAL to enter into a Contract and shall amount to the Advertiser's acceptance of the Contract.
2.4 RAIL PROFESSIONAL's employees and agents are not authorised to agree to change these Conditions or to give any representation or warranty not contained in the Contract unless confirmed in Writing by the Publisher of the relevant RAIL PROFESSIONAL Publication or by a RAIL PROFESSIONAL Director. The Advertiser acknowledges that it does not rely on, and waives any claim for, breach of any such representations or warranties, which have not been confirmed in Writing by either the Publisher of the relevant RAIL PROFESSIONAL Publication or a RAIL PROFESSIONAL Director.
2.5 Any typographical, clerical, or other error or omission in any Media Pack, Agreement to Book Advertising Space, invoice or other RAIL PROFESSIONAL document shall be subject to correction without any liability on the part of RAIL PROFESSIONAL.
3 ADVERTISER'S OBLIGATIONS
3.1 The Advertiser shall be responsible for provision of legible copy to RAIL PROFESSIONAL (without application by RAIL PROFESSIONAL) and will make sure that the data, materials or inserts, which RAIL PROFESSIONAL needs in order to publish the Advertisement, are received at the address specified by RAIL PROFESSIONAL before the Copy Date and the data, materials or inserts shall comply with the requirements of the Media Pack and the Agreement to Book Advertising Space. RAIL PROFESSIONAL and its agents are under no obligation to return data, materials or inserts supplied by or on behalf of the Advertiser.
3.2 If the Advertiser does not fully comply with clause 3.1 RAIL PROFESSIONAL reserves the right to print only the name and address of the advertiser or at its sole discretion repeat the Advertiser's previous copy of a size and shape appropriate to the space booked and RAIL PROFESSIONAL reserves the right to charge the gross amount for the space booked shown in the Agreement to Book Advertising Space.
3.3 The Advertiser is responsible for making sure that the Advertisement is free of libel and other defamatory content, does not breach the copyright of any third parties, does not make unfair or unsupportable or unreasonable claims and is generally fit to be published and specifically will comply with any legal or regulatory requirements in the distribution or circulation area shown in the Media Pack for the RAIL PROFESSIONAL Publication in which the Advertisement is booked to appear. Should it become apparent that it is not so compliant, RAIL PROFESSIONAL reserves the right to suspend the Advertisement, in which case the Advertiser will have no claim for damages for breach of contract.
4 RAIL PROFESSIONAL'S OBLIGATIONS
4.1 RAIL PROFESSIONAL will publish the Advertisement in the nominated RAIL PROFESSIONAL Publication and will distribute the said Publication according to the Contract.
4.2 RAIL PROFESSIONAL gives no representation or warranty as to the period of time during which any RAIL PROFESSIONAL Publication will be published or as to its future circulation figures or territory.
4.3 RAIL PROFESSIONAL reserves the right to include an index to advertisers and/or a product and services index and/or buyers guide or free listing service, but is not responsible for any errors or omissions.
5 RECEIPT OF COPY
5 WORK REQUIRED ON ADVERTISEMENTS 5.1 Where RAIL PROFESSIONAL or its agents are involved in extra production work because of any act or default of the Advertiser or its agents or because of any error in the Advertisement as supplied by the Advertiser or as a result of any Copy Changes that the Advertiser requests RAIL PROFESSIONAL to undertake or in order to render the Advertisement publishable, the Advertiser will have to pay for this work at the rate of £30 per hour (minimum charge £30 per episode). These charges will be added to the invoice for the Advertisement.
6 AMENDMENT AND CANCELLATION
6.1 Advertiser's Change and Cancellation Rights
6.1.1 An Advertiser who has booked an Advertisement via an Agreement to Book Advertising Space may change the size, shape or content of an Advertisement or cancel an Advertisement altogether only by giving notice in Writing to RAIL PROFESSIONAL not less than 28 days before its Copy Date. Such instructions must be made in writing and delivered by Recorded Delivery to RAIL PROFESSIONAL. The Advertiser's right to cancel is in addition to any statutory rights it has. Cancellation will be effective on the issue of a confirmatory Agreement to cancel by RAIL PROFESSIONAL.
6.1.2 Where an Advertiser cancels or changes the size or shape of an Advertisement under clause 6.1, it will pay RAIL PROFESSIONAL within 7 days an administration charge of £200 (exclusive of VAT) per insertion cancelled or changed to compensate RAIL PROFESSIONAL for the time and expense involved in processing the order and cancellation plus any series discounts or other discounts granted to the Advertiser by RAIL PROFESSIONAL for an Advertisement or series of Advertisements which have been paid for prior to cancellation. Failure to do so will result in RAIL PROFESSIONAL publishing the advertisement as originally agreed and the advertiser will become liable for the full amount as per the Agreement to Book Advertising.
6.1.3 Any cancellation notices issued otherwise than as clause 6.1.1 requires shall be ineffective and the Advertiser shall be liable to pay the gross cost shown in the Agreement to Book Advertising Space for the space booked.
6.1.4 An Advertiser may notify a Copy Change at any time before the relevant Copy Date.
6.2 RAIL PROFESSIONAL may change the location, size, shape and content of an Advertisement at any time for good reason, in which case no claim on the part of an Advertiser for damages for breach of contract shall arise.
6.3 RAIL PROFESSIONAL reserves the right in its absolute discretion to refuse, omit, cancel, withdraw or suspend the space for any Advertisement, not to run any other Advertisements in a series or cease to produce or alter the publication dates of any RAIL PROFESSIONAL Publication without explanation, in which case no claim on the part of an Advertiser for damages for breach of contract shall arise.
6.4 If RAIL PROFESSIONAL does any of the things which it is entitled to do in clauses
6.2 and 6.3 in response to the insolvency or any breach by the Advertiser, RAIL PROFESSIONAL's other rights are unaffected.
7 PRICE OF ADVERTISING
7.1 The price of an Advertisement (or a series) shall be stated on the Agreement to Book Advertising Space.
7.2 All amounts stated in these Conditions are exclusive of VAT, which shall be due at the rate ruling on the date of the VAT invoice.
7.3 Where RAIL PROFESSIONAL has to carry out work on an Advertisement to render it publishable, such work shall be charged back to the Advertiser at the rate of £30 per hour. Advertisers who do not wish to make such payments but prefer to do the work themselves and resupply the Advertisement must advise RAIL PROFESSIONAL of this in Writing at the time of sending the original copy.
7.4 Where Rail Professional has agreed to include the advertisers details on the Rail Professional website without additional cost to the advertiser then the advertiser remains responsible for the full cost of the advertisement regardless of any malfunction of the website.
7.5 Where the advertiser has requested to place an advertisement in the same issue as the publication of a specified press release to be supplied by the advertiser the advertiser must ensure that both the advertisement copy and the press release are supplied to RAIL PROFESSIONAL by the copy date. In the event that the press release is not received by the copy date, RAIL PROFESSIONAL will endeavour to place the press release in the following issue but will not be obliged under any circumstances to cancel or delay publication of the advertisement. The publication of a press release is free of charge. The advertiser shall remain responsible for the full cost of the advertisement regardless of any complaint in respect of any press release.
8 TERMS OF PAYMENT
8.1 Accounts are strictly net unless otherwise stated and are subject to settlement on publication of the advertisement or on issue of a Agreement by RAIL PROFESSIONAL confirming a cancellation by the Advertiser. Such invoice may include any discounts repayable under clause 6.1.2 and administration or other charges.
8.2 The Advertiser hereby agrees that it shall pay the price of the Advertisement (or series) on receipt of the RAIL PROFESSIONAL invoice. The time of payment of the price shall be of the essence of the Contract. The Advertiser is entitled to claim any discounts shown on the Agreement to Book Advertising Space only where full payment is received by RAIL PROFESSIONAL on or before the due date for payment of the relevant invoice.
8.3 If payment is to be made by instalments and the Advertiser fails to pay any instalment on its due date then RAIL PROFESSIONAL shall be entitled to demand payment of the unpaid balance (including all arrears).
8.4 The Advertiser may not withhold payment of any invoice or any other amount due to RAIL PROFESSIONAL by reason of set-off or counterclaim which the Advertiser may have or allege to have for any reason whatever.
8.5 If the Advertiser fails to comply with any of the Conditions it shall nevertheless continue to be liable for all charges due and to become due. 8.6 If the Advertiser fails to make payment on the due date then, without prejudice to any other right or remedy available to RAIL PROFESSIONAL, RAIL PROFESSIONAL shall be entitled to charge the Advertiser interest (both before and after Judgment) from day to day on the amount unpaid at the rate of 8% per annum above Lloyds Bank Plc base rate from time to time until payment in full is made and may also at its entire discretion decline to allow further Advertisements booked by the Advertiser to be published without incurring any penalty whatsoever and without being in breach of the Contract.
9.1 The Advertiser shall indemnify RAIL PROFESSIONAL against any loss, cost, liability or claim in connection with any Advertisement awarded against or incurred by RAIL PROFESSIONAL or its employees or agents or paid or agreed to be paid by RAIL PROFESSIONAL in settlement of any claim.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 The Advertiser warrants that it is the owner or has been duly authorised by the owner of any copyright material, brand name, trademark, service mark or logo to be incorporated into the Advertisement and/or press release.
10.2 All intellectual property rights created or used by RAIL PROFESSIONAL in connection with the Contract shall be and shall remain the property of RAIL PROFESSIONAL.
11.1 The Advertisement will be published in accordance with the information provided by the Advertiser. RAIL PROFESSIONAL is not obliged to issue proofs to the Advertiser, but where an Advertiser wishes to see a copy of the Advertisement for checking prior to publication it must make such wish known to RAIL PROFESSIONAL via the Agreement to Book Advertising Space, indicating the name and contact details of the person authorised to approve the Advertisement. Where the Advertiser wishes to see a hard copy proof, a reasonable extra charge for producing the proof and sending it will be made.
11.2 Where the Advertiser wishes to request reasonable colour matching, it must supply Cromalins/Matchprints or tear sheets along with the Advertisement. Advertisers are hereby advised that print and colour quality may vary through factors beyond RAIL PROFESSIONAL's control, and when placing Advertisements in RAIL PROFESSIONAL Publications Advertisers hereby accept that such variation in quality is inevitable and shall not be a reason for non-payment or compensation or the lodging of a claim as described in 12.4, provided always that the Advertisement is fit for purpose, i.e. the information carried in the Advertisement as published is legible and understandable by the reader.
11.3 Where the Advertiser fails either to request a proof of the Advertisement for checking or to provide Cromalins/Matchprints or tear sheets as described in 11.1 and 11.2, then the Advertiser hereby forgoes its right to make any claim as described in 12.4 and hereby holds RAIL PROFESSIONAL blameless and harmless for any errors or omissions in the published Advertisement, provided always that the published Advertisement is fit for purpose as defined in 11.2.
11.4 Where the Advertiser has indicated that it wishes to see a proof of the Advertisement prior to publication, but fails to provide a sign-off by the Copy Date, the Advertiser hereby agrees that RAIL PROFESSIONAL shall publish the Advertisement as if the Advertiser had not requested a proof of the Advertisement, and forgoes any claims in the event of errors or omissions as described in 11.3.
12 WARRANTIES AND LIABILITY
12.1 RAIL PROFESSIONAL's total liability in contract, tort (including negligence or breach of statutory duty) or otherwise in connection with any Advertisement or otherwise under this Contract shall be limited to the price payable by the Advertiser under the Contract net of discounts, each as shown on the Agreement to Book Advertising Space. RAIL PROFESSIONAL shall not be liable for any increased costs or expenses, loss of profit, business, contracts, revenues or any anticipated savings, of the Advertiser or for any special indirect or consequential damage of any nature whatsoever.
12.2 RAIL PROFESSIONAL does not exclude or restrict its liability for death or bodily injury caused by the negligence of RAIL PROFESSIONAL or of its employees while acting in the course of their duties.
12.3 All warranties, conditions or other terms implied by statute or common law are excluded except as expressly provided in these Conditions.
12.4 The Advertiser shall inspect the copy of the Advertisement sent by RAIL PROFESSIONAL and any claim by the Advertiser which is based on any error or omission in the Advertisement shall be notified to RAIL PROFESSIONAL in Writing not more than 7 days after the Advertiser received RAIL PROFESSIONAL's invoice. If the Advertiser does not notify RAIL PROFESSIONAL in this way, RAIL PROFESSIONAL shall have no liability for such errors or omissions and the Advertiser shall be bound to pay the price as if the Advertisement had been published in accordance with the Contract.
12.5 Where any valid claim in respect of any Advertisement which is based on errors or omissions in the Advertisement is notified to RAIL PROFESSIONAL in accordance with these Conditions, RAIL PROFESSIONAL shall be entitled to provide compensation in full either by publishing a similar correct Advertisement free of charge in the next issue of the relevant RAIL PROFESSIONAL Publication or, at RAIL PROFESSIONAL's sole discretion, refund to the Advertiser such part (not exceeding the whole) of the charge for the Advertisement concerned, as is fair and reasonable having regard to the nature of the error or omission. Decisions to make refunds or to publish Advertisements free of charge require the authority in Writing of the Publisher of the relevant RAIL PROFESSIONAL Publication or a RAIL PROFESSIONAL Director.
12.6 RAIL PROFESSIONAL shall not be liable in respect of any breach of the Conditions due to any cause beyond RAIL PROFESSIONAL's reasonable control.
13.1 Any notice or other communication required or permitted to be given by either Party to the other under these Conditions shall be in Writing addressed to that 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. If sent by first class prepaid post it will be deemed to have been received two working days after dispatch and if by fax at the start of business on the working day after dispatch.
13.2 No waiver by RAIL PROFESSIONAL of any breach of the Contract by the Advertiser shall be considered as a waiver of any subsequent breach of the same or any other Condition.
13.3 If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.4 Any reference in these Conditions to a statute or a provision of a statute shall be deemed to be a reference to that statute or provision as subsequently amended, extended or re-enacted.
13.5 Any disputes arising out of the above Terms and Conditions which fall within the jurisdiction of the County Court shall be heard in the Basildon County Court, The Gore, Basildon, Essex, SS14 2BU, the advertiser waiving any rights he has by virtue of Order 16 Rule 4 of the County Court Rules 1981 to apply for the transfer of any Court proceedings to the Court for the district in which the advertiser resides or carries on business.
13.6 The Contract shall be governed by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English and Welsh courts.