Standard Terms of Print and Online Advertising

GENERAL

All media orders accepted by Henley Media Group – or a subsidiary thereof – are subject to these conditions. The media order contract and these standard terms and conditions contain all of the terms that the parties have agreed upon. In the event that any terms outlined on the media order contract conflict with those hereunder, the terms upon the media order contract shall prevail. Any other proposed term, amendment or variation shall be void unless specifically agreed to in writing by Henley Media Group. Printed conditions on Clients’ and/or their agent’s insertion orders shall not be recognized as binding.

In these conditions:

“CLIENT” means the party that signs the media order contract in respect of a sponsorship package, an advertisement or any other deliverable under that contract, and that is responsible for the payment of all Fees in connection with such;

“DELIVERABLE” means any activity produced or developed by Henley Media Group, or a third party contracted by Henley Media Group, including but not limited to advertisements, printed material, media supplements or inserts, online content or email activity, ambient and audio-visual content, experiential activities, promotions, competitions or any other use of Henley Media Group branding in connection with the media order contract;

“FEES” means any amount payable by the Client to Henley Media Group as set out in the media order contract;

“FORCE MAJEURE EVENT” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes, strike of employees, lock out, trade dispute, enemy action, rioting, civil commotion affecting any third party, changes to the law, the general election, disasters, explosions, fires, floods, riots, terrorist attacks, wars, and the death of The Queen);

“INTELLECTUAL PROPERTY RIGHTS” means all intellectual property rights (including copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs) wherever in the world, whether registered or unregistered, including any application or right of application for such rights.

In these conditions unless otherwise specified the words ‘including’ and ‘include’ are to be construed without limitation and references to writing or written include email.

1. SUPPLY OF MATERIALS

The Client shall be responsible for the supply of all advertisement copy or relevant materials and resources required to enable any Deliverable to be fulfilled under the media order contract. Supplementary late fees or processing charges may be liable wherever materials are not supplied in the specified form or by the specified date. In the event Henley Media Group incurs reasonable costs as a result of any missed deadline for the supply of materials or resources, the Client shall reimburse the same to Henley Media Group.

The Client warrants that any description relating to its products or services is true and accurate, is not in any way illegal or defamatory and will at all times comply with all relevant advertising standards and guidelines. The Client shall indemnify Henley Media Group against all costs incurred as the result of any breach of this warranty.

An advertisement or materials provided by the Client are accepted subject to Henley Media Group’s approval of copy and subject to the space being available. Any insert is accepted subject to Henley Media Group’s approval with regard to the copy, size, volume and weight.

Henley Media Group reserves the right to refuse, amend, withdraw or otherwise deal with any advertisement or materials provided for good reason.

2. LIMITATION OF LIABILITY AND INDEMNITY

Henley Media Group excludes all liability whether arising in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise, for any loss or damage caused by any delay or deferral of any deliverable in whole or in part. Complaints regarding the reproduction or delivery of any advertisement or other scheduled activity must be in writing and must be received by Henley Media Group within 14 days of publishing and/or delivery.

Whilst every care is taken to avoid error in relation to any scheduled Deliverable, Henley Media Group shall not be liable for any error due to acts of third parties, sub-contractors, or due to inaccurate or unclear instructions from the Client.

The Client shall indemnify Henley Media Group against all liabilities, costs, expenses, damages and losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Henley Media Group arising out of or in connection with any claim made against Henley Media Group by a third party:

• in any way connected with the Client’s use or sale of goods or services which are defective; and
• for death, personal injury, damage to property, or other loss arising out of or in connection with any Client activity.

Notwithstanding anything in these conditions providing to the contrary, Henley Media Group shall not be liable to the Client for any loss or damage of any kind caused by or arising by reason of a Force Majeure event.

Nothing in these conditions excludes or limits either party’s liability:

• for death or personal injury resulting from the negligence of that Party or its directors, officers, employees, contractors or agents; or
• in respect of fraud or of any statements made fraudulently by that Party or its directors, officers, employees, contractors or agents; or
• for any breach of any term as to title, quiet possession or freedom from encumbrance implied by s12 of the Sale of Goods Act 1979 or s2 of the Supply of Goods and Services Act 1982.

Subject to clauses above and excluding the indemnities provided in any order form and these conditions, neither party shall be liable to the other (or any person claiming under or through the other party) whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:

• loss of profit; or
• loss of revenue; or
• loss of anticipated savings; or
• loss or corruption of data; or
• loss of contract or opportunity; or
• loss of goodwill; or
• indirect or consequential loss of whatever nature, including any loss of a type described in clauses i) to v) above which could be regarded as indirect or consequential and whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by the parties at the time of execution of this Agreement.
• Henley Media Group has engaged third parties, including media partners, to develop and promote their activities and facilitate the fulfilment of their Deliverables. Henley Media Group shall not be held liable by the Client for the actions of any third party, or if Henley Media Group’s agreements with a third party change. In the event Henley Media Group cannot fulfil a contracted Deliverable, Henley Media Group shall use all reasonable endeavours to ensure that the Client receives a comparable benefit and/or equal exposure from an alternative source.

In the event that Henley Media Group is unable to provide to the Client a comparable benefit or broadly similar exposure from an alternative source in respect of its obligations under clause, then the liability of Henley Media Group to compensate the Client shall be limited to the lesser of:

• 20% of the value of the Fees; or
• the cost of the Deliverable not delivered.

In the event that Henley Media Group shall be liable to the Client in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise, Henley Media Group’s total liability to the Client in respect of all claims under or pursuant to these conditions shall be limited to the Fees paid or payable by the Client.

Each party will indemnify and keep indemnified the other against all claims, proceedings, liabilities, damages, costs, expenses (including legal expenses), compensation, Court or Tribunal awards suffered or incurred by the other or its sub-contractor, including sums paid in settlement of any such claims, due to the breach by either party of a statutory duty.

Henley Media Group confirms that it has sufficient insurance to cover its obligations under the media order contract.

3. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

Henley Media Group asserts its ownership and rights to all Intellectual Property rights connected to its publications, websites and any of the activities associated with them.

The parties agree to keep confidential all information which is of a sensitive nature including forecasts, prices, discounts, sales statistics, markets, inventory information, customers, personnel and technical, operational and administrative systems (together the “Confidential Information”) of the other which they may learn in connection with the performance of this Agreement in strict confidence and not to use or disclose the Confidential Information of the other to any other person firm or company outside the Client’s or Henley Media Group’s group of companies and their respective professional advisors, except only as may be necessary and bona fide in connection with its obligations under these conditions provided that where any part of the Confidential Information is already known, or becomes commonly known in the trade, except by a breach of these conditions, or is required to be disclosed by any law or court order then the foregoing obligations of confidentiality in respect of such part of the Confidential Information shall cease to apply.

4. PAYMENT

The standard terms of Henley Media Group are for payment in full within 30 days of the invoice date. If any payment is not received within these terms Henley Media Group shall be entitled to charge interest on the overdue sum under the Late Payment of Commercial Debts [Interest] Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002. Interest will accrue at the rate of eight percent per annum above the Bank of England base rate payable from the due date until the payment of all sums owing (including such interest), whether before or after judgment. In the event that the payment terms upon the media order contract conflict with those hereunder, the payment terms upon the media order contract shall prevail.

The Client shall pay on demand any and all expenses, including but not limited to late payment surcharges, debt recovery company commissions and lawyers’ fees and any other third party fees, that are incurred by Henley Media Group and/or its partners in protecting their rights or enforcing the obligations of the Client in the terms hereunder.

5. ASSIGNMENT

Neither party shall sub-contract or assign the whole or any part of the media order contract without the prior written consent of the other. Provided always that such consent is given, neither the Client nor Henley Media Group is relieved of any of its obligations under the media order contract or these conditions.

6. TERMINATION

No media order contract is cancellable at any time except with the express written agreement of Henley Media Group and on terms that the Client shall indemnify Henley Media Group against all reasonable losses and expenses incurred by Henley Media Group as a result of such.

Save for this provision, either party may terminate the media order contract immediately by giving written notice to the other party if the other party:

• commits any material breach of any term of the media order contract (excluding the Client’s failure to pay Fees) and the breach is not remediable; or the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so;
• shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or
• a Force Majeure Event persists for more than fourteen (14) days in respect of Henley Media Group’s performance of the media order contract.
  Henley Media Group may terminate the media order contract immediately at any time by giving written notice to the Client if the Client fails to pay in full and on time any Fee due to Henley Media Group under the media order contract.

7. EFFECTS OF TERMINATION

Upon termination all the provisions of the media order contract will cease to have effect, save that the following provisions 2. and 3. will survive and continue to have effect (in accordance with their terms or otherwise indefinitely) and any other clauses and provisions hereunder and upon the media order contract which are expressly or by implication intended to come into force or continue in force on or after termination.

Termination of the media order contract will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.

8. DATA COLLECTION AND PROTECTION

The Client warrants that it has complied with all requirements of the Data Protection Act 1998 in so far as are required by the

9. NOTICES

Any notice or other information required or authorised by these conditions to be given by either party to the other shall be given by:

• delivering it by hand;
• sending it by pre-paid registered air-mail or first class post; or
• sending it by facsimile transmission, mail or comparable means of communication; to the other party at the address given below.

Any notice or information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.

Any notice or information sent by telex, cable, facsimile transmission, email or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party within 24 hours after transmission.

Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing it to be delivered to the other party at its registered or principal office, or to such other address as may be notified to it by the other party in writing from time to time.

10. WAIVER

The failure or delay by either party in exercising any right, power or remedy of that party under these conditions shall not in any circumstances impair such right, power or remedy nor operate as a waiver

of it. The single or partial exercise by either party of any right, power or remedy under these conditions shall not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.

Any waiver of a breach of, or default under, any of the terms of these conditions shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms hereunder.

11. DETERMINATION OF DISPUTES

Any dispute, controversy or claim arising out of or relating to these conditions and/or the media order contract, or the breach termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.

The number of arbitrators shall be one.

The Appointing Authority shall be the LCIA.

The seat, or legal place, of arbitration shall be London, England.

The language to be used in the arbitral proceedings shall be English.

The parties undertake to keep confidential all awards in any arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain – save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.

By agreeing to arbitration in accordance with this clause, the parties do not intend to deprive any competent court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid of the arbitration proceedings or the enforcement of any award. Any interim or provisional relief ordered by any competent court may subsequently be vacated, continued or modified by the arbitral tribunal on the application of either party.

By agreeing to arbitration pursuant to this clause, the parties waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be validly made.

12. REPRESENTATIONS AND ENTIRE AGREEMENT

These conditions together with the provisions of the media order contract contain the entire agreement between the parties in relation to its subject matter and supersedes all previous conditions understandings commitments, agreements or representations whatsoever whether oral or written (“Pre-Contractual Statement”). The Client acknowledges that it has not agreed to these terms and conditions in reliance on any Pre-Contractual Statement made by Henley Media Group not expressly set out in the media order contract. The Client also agrees that the only remedy available to it for breach of these conditions shall be for breach of contract and it shall have no right of action against Henley Media Group in respect of any Pre-Contractual Statement (other than for fraudulent misrepresentation).

13. NO AGENCY

Nothing in these conditions and/or the media order contract shall be construed as creating any form of agency agreement or relationship between Henley Media Group and the Client. The sole extent of the relationship between the Client and Henley Media Group is as defined in these conditions.

14. THIRD PARTIES

A person who is not a party to the media order contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions hereunder.

15. VARIATION

No variation to these conditions shall be valid unless it is in writing and signed for and on behalf of each of the parties.

16. ENGLISH LAW

The media order contract and these conditions shall be governed and construed in accordance with the laws of England.