Airtime Terms & Conditions
JAZZ FM TERMS AND CONDITIONS FOR RADIO ADVERTISING
- In these terms,
'Advertisement' means the advertisement, including any tagline or microsite: (a) to be broadcast on a single occasion, or in a series, by Jazz FM; or (b) for publication on any of the websites owned or operated by Jazz FM’ as specified on the Advertisement Confirmation Order.
'Advertisement Confirmation Order' means the written confirmation provided by Buyer confirming details of Buyer's order whether through an electronic trading system, Jazz FM order form or by email;
‘Advertiser’ means the company or person (as the case may be) that is the distributor / owner of the product or service which is being promoted in the Advertisement;
‘Agreement’ means these terms and conditions, the Rate Card and the Advertisement Confirmation Order;
'Buyer' means the person placing the order for an advertisement campaign with Jazz FM’, whether such person is the Advertiser or the Advertiser's agency or media buyer;
'Campaign' means the promotional campaign detailed in the Advertisement Confirmation Order consisting of a series of Advertisements;
'Campaign Start Date' means the start date of the Campaign detailed in the Advertisement Confirmation of Order or (if not detailed on the Advertisement Confirmation Order) the first date that an Advertisement is broadcast on the station or is uploaded on one of its websites;
‘Fee’ means the sum payable by Buyer to Jazz FM in relation to the Campaign;
‘Jazz FM’ means Jazz FM Limited (company no. 06825325) or the radio station Jazz FM as the context requires;
‘Intellectual Property’ means any and all, trade marks, service marks, designs, patents, unregistered or registered trade marks, business or trade names, copyright, design- rights, know-how and all other similar rights of a proprietary nature;
‘Material’ means the content, notes and instructions provided by Buyer for use in the Advertisements;
'Rate Card' means the Jazz FM rate card in effect for the time being; and
‘Term’ shall have the meaning set out at clause 2.
- This Agreement commences on the date Buyer signs or confirms the Advertisement Confirmation of Order and shall continue until the final Advertisement in the Campaign has been broadcast or is taken down from www.jazzfm.com (whichever is later) (the “Term”). Notwithstanding any other provision of this Agreement, the placing of an order for the broadcast of an Advertisement (and/or the display of an Advertisement on Jazz FM’s websites) shall amount to an acceptance of this Agreement.
- Subject to the remaining terms of this Agreement, Jazz FM shall broadcast, publish and communicate the Advertisements in accordance with the Advertisement Confirmation Order.
- The parties shall cooperate to ensure the Campaign is developed and delivered in accordance with the specifications and deadlines set out in the Advertisement Confirmation Order.
- To the extent that Jazz FM is responsible for the development and creation of an Advertisement:
- Buyer shall clearly communicate the concept and relevant details of each Advertisement in the timeframe provided;
- Buyer shall provide Jazz FM with all Material necessary for Jazz FM to develop the Advertisement (in the format and style agreed with Jazz FM in advance), at least 14 working days before the Campaign Start Date (unless otherwise agreed in writing), Buyer acknowledges that a delay in providing Material to Jazz FM will cause delay in the development and/or distribution of the Advertisements and Jazz FM shall not be liable for any delay caused by Buyer in these circumstances;
- Jazz FM shall submit the draft Advertisement to Buyer for final approval (such approval not to be unreasonably withheld or delayed) prior to its scheduled broadcast or publication date;
- Buyer must communicate its approval (or, if it does not approve, its comments) of the draft Advertisement as soon as possible, and in no more than 7 days (where 7 days remain before the Campaign Start Date), after it has received the draft Advertisement from Jazz FM, failure to do so shall be deemed acceptance of the draft Advertisement;
- if Buyer does not approve of the draft advertisement it must provide Jazz FM with written details of any changes it requires and (provided such changes are not materially different from the detail set out in the Advertisement Confirmation Order) Jazz FM shall use its reasonable commercial endeavours (subject to the remaining provisions of this agreement) to comply with Buyer’s requested changes in time for the Campaign Start Date; and
- if Buyer delays providing its approval of or comments on the draft Advertisement which delays the Campaign Start Date or such other agreed time for publication or broadcast of the Advertisement, Jazz FM shall not be held responsible for such delay and shall not have any liability to any party.
- Where Buyer is responsible for the Advertisement, it shall be delivered at least 3 working days before the Campaign Start Date in the format required by Jazz FM. The Advertisement’s duration shall be as agreed in the Advertisement Confirmation Order and shall comply with all relevant broadcasting codes and applicable laws. Where an Advertisement is not compliant and needs to be re-recorded, this shall be at Buyer’s cost.
- The Buyer represents, warrants and undertakes that:
- it is entitled to grant the rights to Jazz FM as specified in this Agreement;
- Buyer contracts with Jazz FM as a principal notwithstanding that Buyer may be acting for the Advertiser as an agent or media buyer;
- all Material will, unless otherwise agreed, in writing, be delivered to Jazz FM in the format or medium required by Jazz FM;
- it has obtained or will obtain clearance (and shall be responsible for all costs, royalties and expenses related to all third party rights) necessary for the exploitation of all Material it has provided Jazz FM for the purposes of the Campaign;
- all information supplied to Jazz FM or otherwise used in connection with or used within an Advertisement or Material is accurate, complete and true;
- in respect of any Material submitted for broadcast or publication (whether on the Internet or on the radio) which contains the name or voice or a contribution made by a living person, Buyer or the Advertiser has obtained the authority of such living person to make use of such name or voice or contributions;
- if Buyer is entering this Agreement as agent on behalf of the Advertiser, Buyer warrants that it is authorised by the Advertiser to enter into this Agreement and to place the Advertisement with Jazz FM;
- the Advertisement and / or Material is legal, decent, accurate, complete and truthful and complies with the British Code of Advertising, Sales Promotion and Direct Marketing, the BCAP Code, the RACC Radio Copy Guidelines, all relevant codes under the general supervision of the Advertising Standards Authority and complies with all relevant laws, regulations and codes of practice in the United Kingdom;
- the exercise by Jazz FM of the Material for the Campaign will not violate or infringe any 3rd party Intellectual Property rights or any right of privacy, moral rights or constitute a libel or slander; and
- in connection with this Agreement, it shall comply with all applicable laws, rules, regulations, decrees and/or official government orders relating to data protection, anti- bribery, anti-corruption and anti-money laundering.
- Jazz FM may, in its sole but reasonable discretion: (i) refuse to broadcast or publish an Advertisement or use any Material, or: (ii) require an Advertisement or any Material be amended, and/or (iii) require that an Advertisement is removed from one or more of Jazz FM’s websites within 24 hours to:
- comply with any legal or moral obligations placed on Jazz FM, Buyer or the Advertiser;
- avoid infringing a third party's rights, the BCAP Code, the RACC Radio Copy Guidelines, any other codes published by the Advertising Standards Authority or any other relevant laws or regulation;
- to avoid / remedy the potential risk of bringing Jazz FM into disrepute or harming its reputation; or
- to avoid the breach of the Jazz FM’s relevant brand guidelines or other advertising policies,in which case Jazz FM shall refund any part of the Fee that has been paid which relates to any part of the Campaign not broadcast.
- Jazz FM reserves the right during the Term and for the purposes of the Campaign to broadcast or publish any Material previously supplied by Buyer.
- Jazz FM’s rejection of any Advertisement or Material pursuant to the provisions of clause 8 shall not incur any liability whether to Buyer or any third party.
- Jazz FM will use reasonable efforts to comply with the wishes of Buyer and commits to providing the number of radio spots detailed in the Advertising Confirmation Order. However, it does not warrant that the time, date or the quality of the Advertisement will be exactly as requested by Buyer or as set out in the Advertisement Confirmation Order.
- If, for any reason other than by reason of Advertiser default (in which case Jazz FM shall bear no liability for the following), the Campaign (i) is broadcast missing a material element; (ii) is broadcast containing a material error; or (iii) fails to achieve the number of spots or the level of impact or impressions specified in the Advertisement Confirmation Order, Jazz FM’s liability will be limited, at Jazz FM’s option, to one of the following:
- broadcasting the missing element(s) of the Campaign as soon as is reasonably practicable after the missing element(s) were scheduled to run and for such time as is necessary to generate a number of broadcasts of the Campaign equal to the shortfall; or
- providing the Advertiser with broadcast opportunities for the Campaign of a value equal to the shortfall; or
- making a pro-rata refund of, or reduction in, the Fee in relation to the missing element(s).
- Jazz FM will not be liable for any loss of materials (including the Materials) in relation to the Advertisement, which Buyer warrants that it has retained in sufficient quality and quantity for whatever purpose.
- Jazz FM reserves the right to change its scale of Advertisement rates at any time provided it provides Buyer with reasonable written notice.
- If Jazz FM receives written notification that t Buyer wishes to cancel the Campaign or the broadcasting of a particular Advertisement, by recorded delivery at least 21 working days prior to the Campaign Start Date (or the date the relevant Advertisement is due to be broadcast), Buyer will only be liable to pay the cost of any commercial production Jazz FM has undertaken prior to cancellation. The relevant cost of such commercial production shall be notified to Buyer, in writing, following cancellation. Any cancellation which is less than 21 working days before the Campaign Start Date, regardless of when the Campaign was booked, shall not (even if followed by Jazz FM) affect Buyer's liability for payment for the Advertisement.
- Jazz FM reserves its right to withdraw, or adjust at its discretion, any discount given to Buyer for a Campaign if it is not completed because of any stop order or cancellation by Buyer.
CHARGES AND PAYMENT
- The price payable to Jazz FM for the Campaign shall be the price specified in the Advertisement Confirmation Order and/ or in accordance with the Rate Card. Payment for the Campaign shall be invoiced by Jazz FM when the Campaign is agreed) and is due in clear funds before the Campaign Start Date, unless Jazz FM has agreed with Buyer, in writing, to allow it credit, in which case payment shall be due within 30 days of the date of Jazz FM’s invoice.
- Payment must be made to Jazz FM by: a. cheque delivered (with receipt acknowledged) to its principal place of business (or to another premises as Jazz FM may specify in writing); or b. BACS or other electronic transfer to Jazz FM’s bank account, as detailed on its invoice.
- All rates and charges payable under this Agreement are exclusive of VAT which shall be payable in addition at the rate from time to time in force.
- For the purposes of this Agreement, time of payment shall be of the essence.
- Jazz FM shall also be entitled to charge interest on any outstanding payments at the rate of 2% per annum above the base rate of Barclays Bank plc accruing from and including the date that payment fell due until and including the date of actual payment, both before and after judgment. All additional charges are payable within 7 days following delivery of Jazz FM’s invoice.
- All Intellectual Property (including any programme names or concepts) which owned or licensed by Jazz FM will at all times remain Jazz FM’s property and nothing in this Agreement shall be deemed or construed as an assignment by Jazz FM to Buyer or the Advertiser of any Intellectual Property rights owned by Jazz FM and all rights arising or generated by any such Intellectual Property will accrue to and inure to the benefit of Jazz FM. The Buyer must obtain Jazz FM’s written consent to use any of its Intellectual Property in the future and reserves the right to charge Buyer for such use.
- The Advertiser and/or Buyer hereby grants Jazz FM a non-exclusive, royalty-free licence during the Term to:
- use and reproduce the Advertiser’s Intellectual Property (contained in any completed Advertisement provided for the purposes if the campaign or in any Material) for the purposes of uploading and displaying any Advertisements or Material provided by the Advertiser onto jazzfm.com or broadcasting it on Jazz FM;
- if Jazz FM is creating the Advertisement ,for the purposes of creating such Advertisement and uploading it on jazzfm.com or broadcasting it on Jazz FM; and/or
- for any other purpose in connection with the fulfillment of Jazz FM’s obligations under this Agreement.
- At the end of the Term, Jazz FM shall no longer be entitled to use the Advertiser’s Intellectual Property, save that the Advertiser hereby grants Jazz FM a perpetual licence to use the Material used for the Campaign for Jazz FM’s internal business uses and to promote its advertising services to other potential advertisers. The Advertiser acknowledges that historical on-line digital occurrences of the Advertisement may exist in perpetuity.
- All Intellectual Property belonging to the Advertiser shall at all times remain vested in the Advertiser and nothing in this Agreement shall be construed as an assignment by the Advertiser of any Intellectual Property rights owned by the Advertiser and all goodwill and rights arising in or generated by any such intellectual property will accrue to and inure to the benefit of the Advertiser.
- Jazz FM may, in its absolute discretion, conduct research relating to the Campaign and Buyer acknowledges that Jazz FM may use any findings in relation to future campaigns.
- Jazz FM shall be entitled to refer to its association with the Campaign to promote Jazz FM’s advertising business generally.
LIMITATION OF LIABILITY
- Except as provided in this section, all other liability is excluded.
- It is the responsibility of Buyer to check the correctness of each draft Advertisement (and any repeats) when it is provided to it by Jazz FM for approval. Jazz FM will not be responsible for any errors (or the repetition of an error in an Advertisement ordered for more than one radio broadcast or website publication) in Advertisements approved by Buyer unless it is notified immediately and in writing and, following such notification, Jazz FM fails to remove the Advertisement from its website or continues to repeat the Advertisement in its radio broadcasts. If the error was caused by Jazz FM then the Jazz FM’s liability shall be limited to either:
- crediting Buyer a proportion of the total charge for the Advertisement calculated on a pro- rata basis for the number of broadcasts containing the error or for the number of days in which the Advertisement was live on jazzfm.com; or
- broadcasting a corrected Advertisement or correcting the Advertisement on jazzfm.com without charge.
- Any complaint, claim or query (whether in relation to the Advertisement or the invoice) must be raised with Jazz FM in writing within 10 days following (as the case may be):
- the broadcast of the Advertisement;
- the date on which it is claimed the Advertisement should have been transmitted;
- the date on which the Advertisement should or has been live on Jazz FM’s website(s); or
- the date of receipt by Buyer of the invoice giving rise to the complaint, claim or query.
Such complaint, claim or query shall not affect the liability of Buyer for payment to Jazz FM for charges due for that and all other Advertisements.
- Jazz FM shall not be liable to Buyer for the failure, corruption, interruption, downtime, virus or malfunction of jazzfm.com or Jazz FM.
- Notwithstanding any other terms in this Agreement, if Jazz FM requests Buyer to amend any Material then Buyer shall provide such amended Material within 7 days (or such other reduced timeframe) to ensure that all Material is received 3 days before the Campaign Start Date.
- Jazz FM will not be liable to Buyer if the success of the Campaign is less than anticipated.
- The Buyer will indemnify Jazz FM and shall keep Jazz FM fully and effectively indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising directly or reasonably foreseeable as a result of any breach or non-performance of any of the representations, warranties or other terms of this Agreement. If Buyer is an agent for the Advertiser, Buyer shall indemnify Jazz FM against any claim made by the Advertiser against the Jazz FM, that it is not authorized to enter this Agreement on the Advertiser’s behalf.
- Nothing in this Agreement limits or excludes the liability of a party for death or personal injury resulting from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
- A party shall not be liable to the other for loss of profits, business, goodwill and/or similar losses or loss of anticipated savings, loss off goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- Jazz FM’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Advertisement concerned.
- Jazz FM may terminate this Agreement at any time and without reason by serving 30 days written notice to Buyer.
- Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, if a party:
- commits a material breach of this Agreement which is not capable of remedy or, if capable of being remedied, is not remedied within 15 days of the non-breaching party giving written notice to the other giving details of the breach, requiring its remedy;
- suspends, threatens to suspend, admits inability or is deemed unable to make payment of its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a solvent amalgamation of the company with one or more other companies or the solvent reconstruction of that party;
- files a petition, gives a notice, passes a resolution, or makes an order, for or in connection with its winding up other than for the sole purpose of a solvent amalgamation with one or more other companies or for solvent reconstruction;
- makes an application to court or an order is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the party;
- has a person who has become entitled to appoint a receiver over its assets or a receiver is appointed over its assets;
- has a creditor who attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- any event occurs, in any jurisdiction, or to any Buyer or Advertiser who is an individual to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause; or
- suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(A) in the case of Buyer, Jazz FM shall be entitled: to suspend the Campaign from broadcast or to remove Advertisements from any of its websites until the breach is remedied; or to terminate this Agreement without liability to Buyer immediately by giving written notice to Buyer (without prejudice to any remedy available to Jazz FM for any antecedent breach); and
in any such event, any balance of the price which is outstanding shall become due and payable by Buyer immediately; and
(B) in the case of Jazz FM, Buyer may terminate this Agreement without liability to Jazz FM immediately by giving written notice to Jazz FM.
- Termination or expiry of this Agreement shall not affect a party’s accrued rights and obligations as at the date of termination. Clauses 24, 26, 28-37 and 43 shall survive termination or expiration of this Agreement.
- The Buyer acknowledges and consents to details of Buyer's name, address, payment record and if Buyer is an individual to personal data (as defined under the Data Protection Act 1998) being processed by Jazz FM and submitted to a credit reference agency (details of which shall be available upon request) for the purposes of obtaining a credit report. If Buyers are partners in a partnership or individuals trading as an unincorporated business, this clause applies to the partners in such partnership and the proprietors of such unincorporated business.
- Any personal data transferred to Buyer by Jazz FM pursuant to its obligations under this Agreement shall be Jazz FM’s property and Buyer warrants that it shall, comply with the United Kingdom Data Protection Act in respect of that data.
- The terms of this Agreement (but not its existence) and any other information notified by one party to the other shall be kept strictly confidential at all times unless required by law, court order of a competent jurisdiction, in which event the disclosing party shall notify the other party shall notify the other party as promptly as possible (and, if at all possible, prior to the making of any such disclosure) and shall use its reasonable commercial endeavours to ensure that such information continues to be treated as confidential. Notwithstanding the foregoing, the parties shall be entitled to disclose any such confidential information on a “need-to-know” basis under the same obligations of confidentiality as in this Agreement, to its professional advisors, employees, officers, contractors and agents.
- Jazz FM shall have no liability to Advertiser or Buyer if Jazz FM is prevented, hindered or delayed in carrying out any of Jazz FM’s obligations under the Agreement by any act or thing beyond Jazz FM’s control or any other act or event that affects or may affect Jazz FM’s programming or campaigns (including any law or regulatory order, power failure, breakdown or failure of software or machinery, interruption of broadcast, accident, act of God, storm, fire or flood, death of royalty or other public figure, terrorist action or war, failure of sub-contractors, suppliers or labour dispute) (a “Force Majeure Event”).
- If the Force Majeure Event continues for more than one month, either party may terminate the Agreement with immediate effect by written notice. Any such termination shall be without prejudice to Jazz FM’s right to be paid any outstanding Fees up to the date of termination and all production costs.
- No waiver or indulgence by Jazz FM shall be effective save in relation to the matter in respect of which it was specifically given.
- The Buyer may not assign this Agreement in whole or in part.
- Any notice under this Agreement shall be in writing and sent by recorded delivery post or by-hand delivery at the last known address from which one party has communicated with the other in connection with the Agreement. In the case of the service of a notice by Buyer upon us, such notice shall be addressed for the urgent attention of the CEO.
- To the extent permitted by law, the invalidity, illegality, or unenforceability of any provision in this Agreement does not affect or impair the continuation in force of the remainder of the provision or Agreement.
- Jazz FM reserve the right to vary its Advertising Terms and Conditions from time to time, provided that the Terms and Conditions in force at the start date of the Campaign shall apply to that Campaign and no variation of the terms of this Agreement shall be effective unless specifically approved in writing by a duly authorised representatives of each party.
- This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, misrepresentation, assurance or warranty (in each case whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
- Any failure or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
- Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
- A person who is not a party to this Agreement shall have no rights to enforce any of its terms whether under the Contracts (Rights of Thirds Parties) Act 1999, or otherwise.
- This Agreement shall be construed under and governed by the law of England and the parties submit to the exclusive jurisdiction of the English courts.
Last updated January 2016