Wherever such terms hereinafter appear: -
“Act” means the Broadcasting Act 1993 (an Act of Tynwald), as amended, modified or re-enacted from time to time, and any regulations made there under.
“Advertiser” means the person, firm or company identified as such under the Agreement (including its successors in title and assigns).
“Advertising” means any advertising material (including taglines or strap lines) intended for broadcast by Energy FM in accordance with the Agreement.
“Advertising Agency” means a person, firm or company carrying on business involving the selection and purchasing of advertising space or time for persons wishing to advertise.
“Agreement” means an agreement (written or oral) between the Advertiser and Energy FM for the booking of advertising time (including, without limitation, a completed Energy FM Order Form or other record of such booking) and shall include these Conditions, which shall be deemed incorporated therein. References to “booking” and “booked” shall be construed accordingly.
“CCL” means Carrick Creative Limited, BVI Company Number 1721052.
“Campaign” means the advertising time booked which is the subject of the Agreement.
“Energy FM” means the Isle of Man licensed Sound Broadcast Service “Energy FM” (incorporating the Energy FM Website – www.energyfm.net), including its successors in title, assigns and group companies (including, for the avoidance of doubt, where Energy FM acts on behalf of a third party).
“Conditions” means these terms and conditions for the time being in force (including any amendment under Condition 11.6).
“Rate Card” means Energy FM’s current list of standard prices and rates.
“Regulator” means the Communications Commission or any successor or competent regulatory body from time to time.
“Fee” means the fee for the Campaign as specified in the Agreement.
“Package/s” means a deal or number of spots sold at a special rate other than the rate published on the current Rate Card.
2. Advertising Agencies and Commissions
2.1 An Advertiser who is an Advertising Agency shall be deemed to contract as principal and will be responsible for the payment of all amounts under the Agreement and will be deemed to have full authority in all matters connected
with the booking of advertising time or the amendment or approval of Advertising.
2.2 Agency commission of 10% (or such other amount determined by Energy FM) of the Fee (excluding VAT) is payable by way of deduction to a bona fide credit worthy Advertising Agency recognised by Energy FM (in its sole discretion) and will be calculated from the rates applicable less discount allowed.
2.3 No agency commission is payable whilst sums remain due from the Advertiser after the due date for payment and no such commission shall be paid to or shared with any third party.
3. Acceptance of Terms and Conditions
3.1 The booking of the Campaign and/or the broadcast of Advertising will be deemed an unqualified acceptance of these Conditions by the Advertiser (whether or not the Agreement is confirmed in writing, it will be deemed accepted by performance). These Conditions shall govern and be incorporated into the Agreement and shall prevail over any other terms and conditions contained or referred to elsewhere (whether before or after receipt of these Conditions) or implied by trade custom, practice, course of dealing or law.
3.2 The Advertiser acknowledges that where Energy FM sells advertising time on behalf of a third party, Energy FM acts only as agent for the third party. The Advertiser's contract, rights and remedies will be with the third party (and not Energy FM) accordingly.
4. Acceptance of Advertising
4.1 Advertising will only be broadcast if it has been approved by Energy FM and if it complies with all relevant legal and regulatory requirements or codes of practice (whether voluntary or obligatory) relating to the Advertising or its broadcast and such technical requirements and other procedures as Energy FM may require. In particular, the Advertising must comply with the Act and the Radio Advertising and Programme Sponsorship Code of Practice issued by the Regulator.
4.2 Advertising which is not being produced by Energy FM must be received by Energy FM not less than 5 clear working days before the scheduled start of the Campaign unless Energy FM agrees otherwise in writing. Receipt of such Advertising shall not be deemed to have been made until Energy FM's technical requirements and submission procedures have been complied with and the relevant broadcast instructions have been given. If Advertising is not received within the specified time (or is deemed not to have been received), the acceptance of Advertising will be in the absolute discretion of Energy FM and the Advertiser shall remain liable to pay the Fee for the entirety of the Campaign whether or not the Advertising is broadcast.
4.3 Advertising will only be broadcast if:
(i) the Advertiser has obtained all necessary licences and consents for the placement of any material protected by any intellectual property or other rights contained in the Advertising; and
(ii) the Advertising is not defamatory or slanderous of any third party or inaccurate or misleading or in contravention of any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) relating thereto and does not infringe any rights of a third party.
(iii) In particular (without limitation) any product claims contained in the Advertising must be capable of verification and, if requested by Energy FM, the Advertiser shall provide evidence of the same. For the avoidance of doubt, Energy FM shall have no liability or responsibility for verifying any such product claims or ensuring that the Advertising complies with this Condition 4.3.
4.4 Energy FM may (without incurring any liability whatsoever) amend or decline to broadcast the Advertising if, in Energy FM's opinion, the Advertising does not comply with Condition 4.3 or is otherwise unsuitable or inappropriate for broadcast (in Energy FM's absolute discretion) or the Regulator requires it to do so.
4.5 If Energy FM exercises its discretion pursuant to Condition 4.4, it will notify the Advertiser as soon as practicable who shall consult with Energy FM with respect to supplying alternative Advertising if appropriate. Should alternative Advertising not be appropriate or not accepted by Energy FM (or not be provided), the Advertiser shall remain liable to pay the Fee for the entirety of the Campaign whether or not the advertising time booked is used to
broadcast the Advertising and the Advertiser shall have no claim against Energy FM for any expense or damage whatsoever incurred as a result thereof. If, pursuant to Condition 4.4, Energy FM has amended the Advertising, it shall supply a copy of the same to the Advertiser.
4.6 Acceptance of Advertising by Energy FM does not confer any right for the Advertiser to have a repeat order accepted on similar terms.
5. The Campaign
5.1 Energy FM reserves the right to modify the scheduled times and dates of the Campaign. If for any reason (other than by reason of the Advertiser's default or the exercise of Energy FM's discretion pursuant to Condition 4.4 above) Advertising is not broadcast as scheduled or is broadcast containing a material error, Energy FM will use all reasonable endeavours to offer to broadcast the Advertising at some other time/or some other date(s) which may be accepted instead by the Advertiser at no additional cost (but without prejudice to the Advertiser's obligation to pay the Fee). Save for such offer (whether or not the Advertiser accepts the same), the Advertiser shall have no claim against Energy FM in respect of failure or delay or partial broadcast of the Advertising or for any expense or damage whatsoever incurred as a result thereof (and this shall not affect the Advertiser's obligation to pay the Fee).
5.2 Energy FM accepts no liability for any loss of profit, business, contracts, revenues or anticipated savings or for special, direct, indirect or consequential loss of any nature howsoever arising even if such damages are foreseeable and whether or not Energy FM has been advised of the possibility thereof. The maximum liability of Energy FM to the Advertiser for any and all breaches of the Agreement (or tort including negligence or breach of statutory duty save in cases of death or personal injury) shall be the amount of the Fee under the Agreement.
5.3 Where an Agreement includes reference to a particular level of impact or audience reach, no guarantee is given to the Advertiser or any other person that such level of impact will be achieved (but Energy FM shall use all reasonable endeavours to ensure the same). However, in certain circumstances and at the absolute discretion of Energy FM, if for any reason (other than by reason of the Advertiser's default or the exercise of Energy FM's discretion pursuant to Condition 4.4) the stated level of impact is not achieved, Energy FM may offer to broadcast the Advertising further to compensate for the deficiency in the level of impact. If any such offer is not accepted (or not made), the Advertiser shall have no claim against Energy FM in respect of the deficiency or for any expense or damage whatsoever incurred as a result thereof.
5.4 Any information provided by Energy FM to the Advertiser in respect of impacts achieved or Advertising broadcast is provided by way of information only and Energy FM gives no representation or warranty as to the accuracy or completeness thereof (and all warranties and representations are hereby excluded). Energy FM has no obligation to provide further information or to update any information already provided.
5.5 The Advertiser may request Energy FM to provide less than the agreed amount of Advertising upon giving Energy FM not less than 7 clear days' prior notice in writing but this shall not affect or otherwise discharge the Advertiser's obligation to pay the entirety of the Fee for the Campaign.
6. Termination and Cancellation
6.1 Either party may terminate the Agreement by giving notice in writing to the other no later than 28 clear days before the scheduled start date of the Campaign (or such other date as the parties may agree in writing). A termination notice received by Energy FM later than 28 clear days before the scheduled start date of the Campaign will result in the entirety of the Fee becoming due and immediately payable by the Advertiser.
6.2 Energy FM may terminate the Agreement by giving notice in writing to the Advertiser no later than 3 clear days following acceptance of the booking under the Agreement.
6.3 Energy FM may terminate the Agreement immediately by notice in writing if the Advertiser:
(i) commits a material breach of its obligations under the Agreement which, if capable of remedy, is not remedied within 7 days after receipt of written notice requesting the same; or
(ii) goes into liquidation either voluntary or compulsory (except as part of a bona fide scheme of reconstruction or amalgamation), is dissolved, compounds with its creditors or has a receiver or administrative receiver appointed over the whole or part of its assets.
6.4 Termination does not affect a party's accrued rights and obligations as at the date of termination.
6.5 Where advertising packages are sold for a spot rate less than the current ‘Rate Card’, the Advertiser would be liable for the full Rate Card rate if the ‘Package / deal’ is cancelled early. Package and Special Deal rates are dependent on the Advertiser completing the Advertising booked for that particular campaign.
7. Material and Property Liability
Energy FM will endeavour to use reasonable care in respect of any advertising material under the Agreement but shall have no liability whatsoever for the loss, damage or unauthorised use of the same (whether or not such material is provided by Energy FM). Energy FM may destroy advertising material after a period of three months following the end of the Campaign without further reference to the Advertiser.
8. Fees and Payment
8.1 If the Advertiser is an approved credit customer of Energy FM, the Fee will be invoiced monthly in arrears at the end of each calendar month while the Campaign is on-going and immediately in the calendar month, in which the Campaign concludes, calculated by reference to the Advertising scheduled for broadcast during that month. Otherwise, the Fee for the entirety of the Campaign will be invoiced on the date of the Agreement, or as otherwise agreed in writing by Energy FM, and will be paid prior to commencement of the Campaign.
8.2 Save for the pre-payment requirement pursuant to Condition 8.1, payment of invoices will be made in full within 14 days of the date of the invoice. Payment is to be made in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever. In default of such payment, Energy FM is entitled (without prejudice to its other remedies) immediately to cease broadcasting the Advertising without any obligation to the Advertiser or claim against Energy FM. Time of payment is of the essence.
8.3 If any amount is not paid in full by the due date for payment, interest is payable on the outstanding amount at a rate of 2½% per month. Interest accrues from the due date for payment until receipt by Energy FM of the full amount (including any accrued interest) whether before or after judgment.
8.4 The existence of a query on any item in an invoice shall not affect the due date of payment of the balance of the invoice. The Advertiser must notify Energy FM of any query within 10 days of the date of invoice. Invoices may not be queried after this time. Any amount queried and withheld by the Advertiser will be subject to the full rate of surcharge in Condition 8.3 above and will be payable as part of the settlement of the invoice, unless resolved in favour of the Advertiser.
8.5 Any extension of credit allowed to the Advertiser may be changed or withdrawn at any time. For the avoidance of doubt, if the Advertiser ceases to be an approved credit customer of Energy FM, Energy FM reserves the right by notice in writing to invoice the Advertiser immediately for the outstanding amount of the Fee for the entirety of the Campaign.
8.6 Energy FM is entitled to set off against any monies due by it to the Advertiser (and any Advertiser's group company) and is entitled to apply any monies held by it on behalf of the Advertiser in settlement of any monies due to it by the Advertiser.
8.7 If any amount is not paid in full by the due date for payment, Energy FM may (in its absolute discretion) elect not to accept any new bookings for advertising time from the Advertiser (whether for the same client or in respect of other clients). 9. Warranties and Indemnities
9.1 The Advertiser warrants and undertakes to Energy FM that:-
(i) it is responsible for obtaining, maintaining and paying for all necessary licences and consents for the transmission of any material protected by any intellectual property or other rights contained in the Advertising; and
(ii) the Advertising will not infringe the copyright or other rights of or be defamatory, libellous or slanderous of any third party or be inaccurate, misleading, obscene or offensive or in any way contravene any relevant legal or
regulatory requirement or code of practice (whether voluntary or obligatory) from time to time governing or relating to the Advertising or its broadcast and will not infringe any rights of a third party.
9.2 The Advertiser will indemnify and keep Energy FM indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities (including legal and other professional fees and damages for loss of reputation and goodwill) arising from any breach of the above warranties or in any manner whatsoever resulting from the use or broadcast of the Advertising.
9.3 The Advertiser shall notify Energy FM forthwith on it’s becoming aware of any fact or circumstance, which would constitute a breach of Condition 9.1.
10. Force Majeure
10.1 Energy FM shall have no liability to the Advertiser if it is prevented, hindered or delayed in carrying out any of its obligations under the Agreement by any law or regulatory order, rule or regulation or by any other act or thing
beyond Energy FM's control (including strike, lock-out, malicious damage, breakdown of plant, software or machinery, accident, fire or flood or death of royalty).
10.2 Energy FM may (without any right of the Advertiser to bring a claim against Energy FM) extend the time period for performance of the Agreement to take account of such force majeure or terminate the Agreement with immediate effect by written notice. If the force majeure continues for more than one month, Energy FM may terminate the Agreement with immediate effect by written notice. For the avoidance of doubt, any such termination shall be without prejudice to Energy FM's right to be paid any accrued amounts as at the date of termination.
11.0 Your contract for Energy FM Advertising will be with Carrick Creative Limited (CCL) who act as sole Sales Agents for Energy FM Billing and Contract Management. Invoices will be raised by CCL and payments must be made to CCL.
11.1 Any notice under the Agreement shall be in writing and sent by recorded delivery post, by-hand delivery, ordinary post at the last known address or fax number from which one party has communicated with the other in connection with the Agreement and, if sent by ordinary post, shall be deemed to have been received 48 hours after posting.
11.2 The Advertiser may not assign or transfer any of its rights or obligations hereunder without having obtained Energy FM's prior written consent.
11.3 The Advertiser shall not without the prior written consent of Energy FM publish any information in connection with any advertising which has been broadcast or is scheduled for broadcast.
11.4 The invalidity, illegality, or unenforceability of the whole or part of a Condition does not affect or impair the continuation in force of the remainder of these Conditions.
11.5 Energy FM shall be entitled to refer to the Advertiser's association with Energy FM and the Advertising placed hereunder to promote Energy FM and its advertising and sponsorship business generally.
11.6 No variation of the terms of the Agreement is effective unless specifically approved in writing by the Advertiser and a duly authorised representative of Energy FM. This is without prejudice to Energy FM's right to amend or modify these Conditions from time to time.
11.7 The Agreement represents the entire agreement between the parties relating to the subject matter of the Agreement and supersedes all prior representations, agreements, negotiations or understandings (whether oral or in writing). Except as set out in these Conditions, all conditions, warranties and representations expressed or implied by law are excluded.
11.8 The failure to exercise or delay in exercising a right or remedy provided by these Conditions or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
11.9 The Agreement shall be governed by and interpreted in accordance with the law of the Isle of Man and the parties irrevocably submit to the exclusive jurisdiction of the Manx courts.