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Advertising and sponsorship Terms and conditions (USA)
A ADVERTISING
All Advertisements are accepted subject to the conditions of insertion protocols set out below.
1 Ordering
1.1 By placing an order for the insertion of an Advertisement in a Publication or on the Cross Border Web Site or in other media the Buyer confirms acceptance of and agreement to these terms and conditions (“Conditions”) and the provisions of the applicable Rate Card which shall be deemed to be incorporated into them. In the event of variation or inconsistency between these conditions and the provisions of the applicable Rate Card, these Conditions shall prevail.
1.2 These Conditions (with such variations, if any, as the Company may expressly agree in writing) shall apply to each contract for placing an advertisement to the exclusion of any other terms and conditions including without limitation any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document.
2 Buyer's indemnity and warranties
2.1 The Buyer accepts full legal responsibility in respect of any Advertisement submitted by it for publication and indemnifies the Company and shall keep it fully and effectively indemnified against any actions, proceedings, claims, demands, damages, costs (including legal costs) and any other liability whatsoever (civil or criminal) arising directly or indirectly and whether or not reasonably foreseeable from (a) the Company’s handling, publication or reproduction of the Advertisement, and/or (b) any breach by the Buyer of any obligations, warranties or representations contained in these Conditions or implied by law.
2.2 Without prejudice to the generality of the foregoing, the Buyer warrants and represents that:
2.2.1 The Advertisement does not contravene any statutorily recognized US regulatory authority, or any other relevant legislation or code of practice;
2.2.2 The publication, republication and reproduction of the Advertisement (whether or not amended in accordance with Condition 3.4) in any medium will not (a) infringe any Rights of any third party, (b) breach any contract, agreement or understanding, (c) be in any way contrary to the law applicable anywhere in the world, or (d) otherwise expose the Company to the risk of any civil or criminal proceedings whatsoever;
2.2.3 In respect of any Advertisement which contains the name and/or image of any living person, the Buyer has obtained the authority of such person to make use of their name and/or image;
2.2.4 No contamination file, virus, worm or Trojan horse is contained in or will originate from the advertisement, its content or any linked area or from any e-mail, attachment, message or other documentation supplied by the Buyer;
2.2.5 The Advertisement is legal, decent, honest and truthful and does not infringe the relevant codes of any relevant US regulatory body; and
2.2.6 Where it is acting as an advertising agency or media buyer, or in some other representative capacity, the Buyer is authorized by the Advertiser to place the Advertisement in accordance with these Conditions.
3 Supply of proofs and corrections
3.1 The Advertisement and all artwork, copy, photographs, copy instructions, proofs and other material necessary for the publication of the Advertisement (together the “Materials”) must be received by the Company in such form and by such date as the Company may specify in the contract.
3.2 If the Materials are not received by the date or in the form specified in Condition 3.1, the Company reserves the right (at its sole discretion), and without prejudice to the Company's right to be paid for the relevant Advertisement either (a) to print the relevant Advertisement from any copy or proofs previously supplied by the Advertiser (or, if different, the Buyer), or (b) not to publish the relevant Advertisement.
3.3 The Company cannot undertake to make, nor shall it be responsible for, any alterations or corrections to the Advertisement if requested after the latest date specified for such alterations or corrections.
3.4 The Company may (without prejudice to the Buyer's warranties contained in these Conditions) make or require the Buyer to make any amendments, corrections or alterations to an Advertisement that the Company considers in its absolute discretion necessary or desirable, whether to conform with the style and subject matter of the Publication, with the Buyer’s warranties in these Conditions or the technical specifications set out in the applicable Rate Card, for legal or regulatory reasons or otherwise.
4 Materials
The Buyer acknowledges that the Rights in all artwork, copy and other materials which the Company or its employees or its contractors has originated or re-worked shall vest solely in the Company.
5 Company responsibilities
5.1 The Company will use its reasonable endeavors comply with the wishes of the Buyer in relation to the placing of the Advertisement in the Publication but notwithstanding this, the Company cannot guarantee and does not warrant:
5.1.1 The Publication Date, the wording or the quality of color or mono reproduction of the Advertisement;
5.1.2 That the Advertisement will be placed in any special position unless specified in the contract. Any such agreement by the Company will be specific to an identified Advertiser, and no other Advertiser may take the agreed position without the Company’s prior written consent.
5.2 The Buyer acknowledges, in relation to any Advertisement to be published on the Web Site, that the Site will not be continuously available and will be subject to suspension from time to time for routine maintenance and updating.
6 Cancellations
6.1 The Company reserves the right without giving prior notice to the Buyer (a) to postpone, suspend, transfer or cancel the publication of the Advertisement, and/or (b) to change the position of the Advertisement in the Publication. Provided that the Buyer is not in breach of any of these Conditions the Company will in such cases return any money paid by the Buyer in respect of any Advertisement which does not appear in the Publication.
6.2 At the time an order is placed by the Buyer, if the Buyer is an advertising agency or media buyer and does not disclose (a) the name of its Advertiser client, and/or (b) the goods or services which are to be the subject of the Advertisement for that space, the Company may at any time refuse to accept or suspend the Advertisement, and in such circumstances neither the Buyer nor the Advertiser shall have any claim against the Company in respect of such refusal or suspension, and if the space is not filled by the Company, the Buyer shall be responsible for any loss suffered by the Company.
6.3 The Company will only accept a request from the Buyer to postpone, suspend, transfer or cancel publication of an Advertisement if the request is received in writing by the Company eight weeks before publication date. Any such requests after that shall not affect the Buyer’s liability for payment for the Advertisement. Where a buyer has a discounted rate for booking a series of insertions, such discounts will be repayable on cancellation of the series. The Company may treat as a cancellation the fact that the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 before payment in full of the price for the relevant Advertisement or is otherwise in breach of any of these Conditions.
7 Errors
7.1 If there is an error in the Advertisement as published or publication is delayed or does not occur as planned, the Company will not be liable unless this is caused by its neglect or default.
7.2 The Buyer shall notify the Company in writing of any error in a published Advertisement as soon as practicable. The Company shall not be liable for the repetition of an error in an Advertisement not drawn to its attention in accordance with this Condition.
B SPONSORSHIP
1 Ordering
1.1 By placing an order for sponsorship of an event the Buyer confirms its acceptance of and agreement to these conditions and the provisions of the applicable Rate Card which shall be deemed to be incorporated into these Conditions. In the event of any variation or inconsistency between these Conditions and the provisions of the applicable Rate Card, these Conditions shall prevail.
1.2 These Conditions (with any variations the Company expressly agrees in writing) shall apply to each contract for Sponsorship to the exclusion of any other terms and conditions including without limitation any terms or conditions which the Buyer purports to apply under any purchase order, order confirmation, specification or other document.
2 Logo
The Company acknowledges that all rights in the Buyer’s Logo belong to the Sponsor. The Buyer acknowledges that all rights in the Event being sponsored and in the Event Logo belong to the Company. Accordingly, all materials (including without limitation materials produced by or on behalf of the Buyer) which contain any such name or Logo are subject to the Company’s prior approval.
3 General promotion
The parties acknowledge the Buyer’s right to promote its sponsorship with the Event in any advertising, sales promotion or other medium, subject in each case to the prior approval of the Company, such approval not to be unreasonably withheld. The Buyer agrees to use all reasonable endeavors to promote the Event to its clients with a view to such persons attending the Event.
C RATES AND PAYMENT FOR ADVERTISING AND SPONSORSHIP
Unless the Company agrees otherwise in writing:
1.1 The price for any Advertisement will be the Rate Card price prevailing at the Publication Date. The price for any Sponsorship will be the price specified in the Contract.
1.2 In the case of Advertisements, payment is due within 30 days of the date of the invoice for the Advertisement. For sponsorships, payment is due within 30 days of the date of the invoice or within 48 hours of the start of the event, whichever is sooner. Failure to meet the payment terms for a sponsorship may preclude the sponsor’s further involvement in the event.
1.3 The Buyer acknowledges the cost to the Company of late payment of the Company’s invoices and accordingly agrees to pay in respect of any payment not made by the due date the aggregate of-
1.3.1 an administration fee of $150; and
1.3.2 interest (accruing on a daily basis) on the amount unpaid at the rate of 5 per cent above the current interest rates from the due date for payment up to the date on which the Company receives the full outstanding amount together with all interest.
1.4 The Company reserves the right to charge the Buyer for the cost of the Company's (or its printers') extra production work arising from any exceptional production requirements or any acts or defaults of the Buyer (including without limitation amendments, corrections or alterations made pursuant to Condition 3.4 above).
1.5 The Company shall provide the Buyer with one voucher copy of the relevant Publication for each insertion.
D ENTIRE AGREEMENT
1.1 These Conditions, read together with the Rate Card and the Contract, constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the placing of Advertisements by the Company. The Buyer or Sponsor agrees that it has not been induced to enter into these Conditions in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in these Conditions as a warranty. The only remedy available to the Buyer for breach of the said warranties shall be for breach of contract under the terms of these Conditions and the parties unconditionally and irrevocably waive any other claims, rights or remedies that may otherwise be available.
E LIMITATION OF LIABILITY
1.1 The Company shall not be liable for any indirect or consequential loss (including without limitation business interruption and loss of profits, business, goodwill, reputation, anticipated savings, information or data) whether arising out of breach of contract, tort (including negligence), breach of statutory duty or otherwise howsoever; and
1.2 The Company’s total liability in contract, tort (including negligence), breach of statutory duty or otherwise howsoever arising in connection with the performance or contemplated performance of these Conditions shall be limited to (a) refund of its charge for the relevant Advertisement or Sponsorship, or (in the Company's absolute discretion) (b) the free repeat publication of the relevant Advertisement or an appropriate corrective advertisement or a substitute sponsorship arrangement.
F FORCE MAJEUR
1.1 The Company shall not be liable for any failure to publish the Advertisement or hold an Event or perform any of its other obligations under these Conditions caused by circumstances beyond its reasonable control (including without limitation a labour dispute between a third party and its employees or an act of terrorism or military action).
G MISCELLANEOUS
1.1 Reference to an act or omission of the Buyer shall include any act or omission of any relevant director, employee or agent of the Buyer.
1.2 Reference to any Statute or Code of Practice shall be deemed to include reference to such Statute or Code as amended, updated, re-enacted or replaced from time to time, as well as any subsidiary legislation, regulations or statutory instruments enacted under any such Statute.
1.3 Nothing in these Conditions shall operate to limit or exclude any liability for fraud or death or personal injury caused by the negligence of the Company or any other person for whose actions the Company is responsible or for any other liability to the extent that such liability may not be excluded or limited as a matter of law.
1.4 The Buyer shall pay all monies which are payable by it to the Company without any right of set off, abatement, deduction, discount or withholding in respect of monies due from the Company or alleged to be due from the Company to the Buyer (or, if different, the Advertiser).
1.5 No person who is not a party to these Conditions has any right to enforce any term of these Conditions.
1.6 These Conditions shall be governed and construed in accordance with the US laws of and each party agrees to submit to the exclusive jurisdiction of the relevant court.
H INTERPRETATION
1.1 In these Conditions unless the context otherwise requires reference to the singular includes reference to the plural (and vice versa) reference to any gender includes reference to the other gender and the following capitalized expressions shall have the following respective meanings and all other capitalized expressions have the meaning ascribed to them elsewhere in these Conditions:-
“Advertisement(s)” shall include any loose or inserted advertisement, any advertisement attached to or distributed with a Publication (including free gifts), information supplied in connection with an advertisement, and advertisements in any form (including without limitation electronic readable form on the Web Site);
“Advertiser” shall mean the person advertising its products or services or making an announcement in the Advertisement;
“Archive” shall mean any database in which the Company retains for future reference or use by itself or others material (including Advertisements) which has been published in or with a Publication or the Web Site;
“Buyer” shall mean the person placing an order for Sponsorship of an event or the person placing an order for the insertion of an Advertisement with the Company, whether or not that person is the Sponsor or the Advertiser;
“Company” shall mean Cross Border (USA) Inc (EIN number 113-38-63150) located at 65 Broadway, Suite 605, New York, NY 10006
“Day(s)” shall mean any day except for a Saturday, Sunday or a day which is a public holiday in the United States;
“Financial Promotion” means any Advertisement that comprises or includes an invitation or inducement to engage in investment activity (as those terms are from time to time interpreted for the purposes of the FSMA);
“Publication” means each periodical printed publication published by the Company;
“Publication” means the relevant issue of a Publication or, as the context requires, the relevant period of publication on the Web Site;
“Rate Card” means the Company's current rate card in respect of a Publication or the Web Site including, without limitation, advertising rates and additional conditions concerning copy and cancellation dates, technical and stylistic specifications and any related information;
“Rights” means any copyright, extended or revived copyright, design right, registered design right, patent, performer’s property right, trade mark, database right, image right, moral right or any similar right exercisable in any part of the world;
“Sponsor” means the person sponsoring an event of any kind being run by the Company; and
“Web Site” means each and every web site owned or operated by the Company.