Terms & Conditions
- "Client" means any person, firm or company that places an Order, whether acting on its own behalf or on behalf of a third party.
- “Agreed Date” means the date set out in the Offer Letter for the placement of the Content.
- “Agreed Period” means the period commencing on the Agreed Date and ending on the date as stated in the Offer Letter
- “Agreed Price” means the price set out in the Offer Letter for the placement of the Content.
- "Content" means any advertising copy and/or materials that are accepted by the Company.
- "Company" means Embrace Media Ltd.
- “Offer Letter” means the letter from the Company to the Client setting out the Agreed Price and other special conditions relating to the Order.
- "Order" means an order placed by the Client and accepted by the Company for the placement of Content at the agreed price and subject to these Terms and Conditions.
- "Terms and Conditions" means these terms and conditions together with the commercial terms set out in the Offer Letter and other marketing materials provided to the Client from time to time.
2 ACCEPTANCE OF TERMS AND CONDITIONS
- The signature and return of the Offer Letter by the Client constitutes the acceptance of a contract for the advertisement of Content issued by the Company subject to these Terms and Conditions.
- Subject to Clause 2(c) below, no other terms and conditions other than the Terms and Conditions shall apply or be binding on the parties or in anyway supersede these Terms and Conditions.
- The Company reserves the right to change any of the terms (including the rates) of these Terms and Conditions by giving not less than 14 days’ notice to the Client in writing. Otherwise, the parties may agree to vary these Terms and Conditions in writing at any time.
3 PLACEMENT OF AN ORDER
a. Every Order shall be subject to a satisfactory credit report on the Client being received by the Company from a recognised UK credit reference agency.
b. Furthermore, the Company may at its discretion require from the Client:
(i) Satisfactory trade references; and/or
(ii) An advance payment towards the cost of the Order.
4 CREDIT REFERENCE AGENCY
- When the Company receives the Client’s request to place an Order, the Company will contact a licensed credit reference agency in order to assess the Client’s suitability for credit terms. For the avoidance of doubt, the Company may refuse an Order if the Client’s credit terms are not acceptable to it.
5 ACCEPTANCE OF CONTENT
- The Client shall vet all Content and ensure that it does not breach any third party rights. For the avoidance of doubt, the Company has no obligation to carry out such vetting.
- The Content must be delivered in the format specified by the Company and not less than 2.5 weeks before the Agreed Date. If the Client fails to do so the Client shall remain liable to pay the Agreed Price for the placement of the Content, whether or not it is placed. A part delivery of the Content shall be deemed to be no delivery for the purposes of this clause.
- The Company retains the right, without incurring any liability to the Client, to add to, delete, change, amend or decline to place the Content or any part of it or to restrict or decline any repeat thereof if it considers the Content unsuitable.
- The Client shall be responsible for any design, production, printing and/or any other costs, fees and expenses relating to the Content that are not specifically referred to in the Offer Letter.
- Any Content in the Company's possession which is surplus to requirements or which has been removed from display will be retained for not more than 10 days after the end of the display and may then be destroyed unless the Client has given notice in writing that it is to be held by the Company for collection by the Client within that period.
- Projects that are required to be removed from display by a certain date by the Client during or after the time requested by the Client to be removed from site must be brought to the Company’s attention in writing at time of booking. The Company accepts no responsibility for any action brought against the Client by a client in this regard.
- Once the installation of the banner and or frame has been made, the Company accept no liability for the banner or the fixings. The up keep and or the maintenance of fixings thereafter are that of the Client. We accept no liability to our installs from damage caused by Acts of God, vandalism or third party operatives working on locations where the Company has an installation. Any repairs or blanking out of copy to banners in situ with adhesive vinyl are not guaranteed & are the Clients responsibility to monitor & maintain once the Company has left site. We accept no liability to any damage to existing banners left in place where the Company are asked to over wrap with a secondary banner. If a curtain reveal is requested by the Client and the posting is carried out by the Company overnight we cannot accept liability for any remaining creases in the banner. PVC Banner wraps do not replace the need for scaffold mesh or Monorflex it is the Clients responsibility to ensure once the Company has installed the banner adequate protection is put in place after we have made the install.
- It is the Clients responsibility to ensure all scaffold couplings or poles erected by others before we attend, during or after our installation that face a banner should be pulled back and capped. Any changes whatsoever to scaffolding or hoardings The Client must inform the Company if any structural changes are to be made where the Company has made an installation. We accept no liability for drill holes or making good of when scaffold is required to be fixed directly to a property.
- For health and safety reasons the Company shall install a small banner with company logo & telephone number on each bottom corner of the banner elevations for out of hours contact in case any issues arise with the banner installation.
- The Company shall send all invoices the next working day after the project is carried out to the client who shall pay the relevant amount in full within 7 days from the date of the invoice unless otherwise previously agreed by the Company in writing. Time of payment by the Client shall be of the essence.
- In respect of any invoice not paid in full in accordance with clause 6a, the Company shall have the right to levy a surcharge of 4% of the outstanding amount, such surcharges being levied monthly until the Client pays the outstanding amount. In such event, the Company also reserves the right to pass details of the Client’s account to a credit reference agency and to pursue all legal remedies available to the Company in this regard.
- The Client shall be responsible for any taxes or levies imposed by government or industry, payable from time to time in relation to payments made for Content placed.
7 CREDIT LIMITS
a. The credit limit extended by the Company to the Client (as specified in the Offer Letter) is the maximum amount allowed outstanding at any one time during the Agreed Period. The Company reserves the right to amend or withdraw credit terms without further notice to the Client at any time.
- To the maximum extent permitted by law the Company excludes all liability resulting from the placement or failure to place the Content.
- Notwithstanding clause 9a above, neither the Company nor the Client excludes or limits its liability under these Terms and Conditions for:
(i) Death or personal injury caused by its negligence;
(ii) Fraudulent misrepresentation; or
(iii) Any other type of liability which cannot by law be excluded or limited.
9 WARRANTIES & INDEMNITIES
- The Client hereby warrants, represents and undertakes that:
(i) It will be responsible for obtaining and paying for all necessary legal clearance of Content and for obtaining all necessary licences and consents for the placement of all Content and will ensure that the copyright and other intellectual property rights of third parties are not infringed by the placement of the Content;
(ii) The Content shall comply with all applicable laws and codes of practice, including but not limited to the British Code of Advertising Practice;
(iii) No Content (nor any part of it) shall contain any libellous, slanderous or defamatory statement or any matter infringing the rights of any third party;
(iv) It will indemnify the Company against all actions, proceedings, costs (including legal costs) damages, expenses, penalties, claims, demands and liabilities arising from any breach of the above warranties or in any manner whatsoever in consequence of the placing of any Content, or part of it, supplied by the Client or in relation to any products or services of the Client being defective or contrary to law.
(v) The Client is responsible for obtaining any advertisements consent from local planning authorities.
- Cancellation fees of the agreed costs are 15% if less than 90 days but 75 or more days notice is given. 30% if less than 75 days but 60 or more days notice is given. 40% if less than 60 days but 45 or more days notice is given. 70% if less than 45 days but 30 or more days notice is given. 90% if less than 30 days notice is given.
- The Company shall have an immediate right of termination if:
(i) The Client is in breach of any of these Terms and Conditions; or
(ii) Any invoice where credit has been offered from previous projects remains outstanding for more than 30 calendar days;
(iii) The Content that is due to be placed is not approved by the Company;
(iv) An order is made or a resolution is passed for the winding up of the Client or the Client has a receiver or administrator appointed of the whole or any part of its assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitles the Court to make a winding up or administration order or if in the opinion of the Company the Client is unable to pay its debts.
- Termination of an Order shall be without prejudice to any claim by the Company which may have arisen in respect of an Order accepted prior to the date of such termination including (for the avoidance of doubt) any payment, which may thereafter fall due to the Client or the Company howsoever arising.
- If the Company is asked to suspend any site activity or denied access to the site location on the day or days of installation the Client will be liable to cover these abortive costs. This excludes any instruction from the emergency services.
- Should the Client wish to raise any dispute relating to any aspect of an Order the Company must be notified at the earliest opportunity.
12 FORCE MAJEURE
a. The due performance of any Order is subject to suspension variation or cancellation by the Company owing to Acts of God, strikes, lock-outs, inclement weather, legal restrictions, and the accidental loss of any advertisement opportunity which was included in the Order or any other reason beyond the Company's control. In the event of suspension, variation or cancellation for any of the foregoing reasons the Client shall pay the full rate for the Order in question up until the time at which any such suspension, variation or cancellation occurs together with any other monies due and owing by the Client.
13 DATA PROTECTION ACT
- Each party undertakes that it shall perform these Terms and Conditions in accordance with the Data Protection Act 1998 as may be amended from time to time and any other associated legislation and regulations. All information about the Client will be treated as private and confidential. The Company will use and process information held about the Client in any way appropriate to allow the Company to arrange and administer the Client's account. The Client warrants, represents and undertakes that it has all necessary licences and consents from employees, clients and any relevant third party to enable the Company to process all information received from the Client in accordance with the Data Protection Act 1998. The Client has a right to see information relating to it which is held by the Company.
14 THE COMPANY’S USE OF THE CLIENT’S INFORMATION
a. The Company uses credit reference agencies to:
(i) Make enquiries when the Client first applies to place an Order with the Company.
(ii) Assist the Company in managing the Client’s account, for example if the Company wishes to consider changing the Client’s credit limit, or agreeing to other Orders now or in the future;
(iii) Share information about the Client and how the Client manages its accounts(s) with the Company.
b. Credit reference agencies keep a record of the Company’s enquiries and may record, use and give out information the Company gives them to other suppliers/lenders, and other organisations.
c. The Company may give information about the Client and how the Client manages its account to the following:
(i) People who provide a service to the Company or are acting as the Company’s agents, on the understanding that they will keep the information confidential.
(ii) Anyone to whom the Company transfers or may transfer its rights and duties under this agreement.
d. The Company may also give out information about the Client if the Company has a duty to do so or if the law allows or requires us to do so. Otherwise, the Company will keep information about the Client confidential.
e. If the Company transfers the Client’s information to a service provider or agent in another country, the Company will make sure that the service provider or agent agrees to apply the same levels of protection as the Company is required to apply to information held in the UK and to use the Client’s information only for the purpose of providing the service to the Company.
a. If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Terms and Conditions which shall remain in full force and effect.
b. If any provision of these Terms and Conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
c. The parties agree, in the circumstances referred to in clause 16a and if clause 16b does not apply, to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
16 ENTIRE AGREEMENT
a. These Terms and Conditions constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of these Terms and Conditions.
17 WAIVER AND REMEDIES
a. The failure to exercise or delay in exercising a right or remedy provided by these Terms and Conditions or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of these Terms and Conditions or of a default under the Terms and Conditions does not constitute a waiver of any other breach or default and shall not affect the other Terms and Conditions, nor will it prevent a party from subsequently requiring compliance with the waived obligation. The rights and remedies provided by these Terms and Conditions are cumulative and (subject as otherwise provided in these Terms and Conditions) are not exclusive of any rights or remedies provided by law.
a. Any notice to be given under these Terms and Conditions shall be in writing unless the parties mutually agree otherwise and shall be deemed to be effectively served if sent by first class registered post to the party’s address as detailed on the Offer Letter or such alternative address as may be notified by that party from time to time.
19 JURISDICTION & GOVERNING LAW
a. English Law shall govern these Terms and Conditions and the parties submit to the exclusive jurisdiction of the English courts.