1. Definitions & Interpretation
1.1. In these terms and conditions:
“Advertisement” means any kind of promotional or advertising material (including, but not limited to, display advertising, advertorial content, sponsorship, classified and/or recruitment advertising) that is, as the case may be: (i) to be printed in a Print Publication and/or (ii) to be published or otherwise displayed by electronic means (including, but not limited to, banner, skyscraper, pop-up, roadblock, leader, belly bands, cover wraps, tip ons, inserts, button or other forms of online or electronic display advertising) via or as part of or in connection with any Online Publication;
“Advertisement Confirmation” means Energyst Media’s written confirmation of the Buyer’s order;
“the Advertiser” means any person who promotes products or services to the general public or a section of the public, whether such person is the Buyer or not;
“Advertiser Dependencies” means the Copy Deadline, together with any other obligations of the Buyer which Energyst Media may specify in connection with the proposed publication of the Advertisement (whether included in the Advertisement Confirmation, the Rate Card, the Booking Form or otherwise) including, but not limited to, the delivery format and/or file configuration in which any copy for the Advertisement (whether for a Print Publication or an Online Publication) is to be supplied to Energyst Media;
“the Buyer” means the person placing the order with Energyst Media for the publication of the Advertisement (including, but not limited to, the Advertiser’s advertising agency or media buyer);
“Copy Deadline” means, where applicable, the latest date (as shown on the Advertisement Confirmation) by which the Buyer is obliged to give Energyst Media full instructions and copy for carrying out the Buyer’s order in accordance with and subject to these terms and conditions. For the avoidance of any doubt, Advertisements to be published in an Online Publication may not be subject to a Copy Deadline;
“Online Publication” means any website operated or controlled by Energyst Media or other electronic medium (including, but not limited to, e-mail communications and alerts), whether connected with or related to the title of a Print Publication or otherwise;
“Print Publication” means any newspaper, magazine, market intelligence report, insert or ‘onsert’ (and including any supplement for which no charge is made to its recipient and which is published whether regularly or occasionally as part of or in association with such newspaper or magazine) published by Energyst Media;
“ENERGYST MEDIA” means Energyst Media Limited (company no. 08667229) with its registered office at Chart House, 2 Effingham Road, Reigate, Surrey RH2 7JN;
“the Rate Card” means the rate card from time to time in force which is used by Energyst Media and as such may include (amongst other things) Energyst Media’s scale of advertisement rates and also technical specifications relating to the standard and quality of reproduction of any Advertisement including its setting, style, delivery format, file configuration and size and wording;
“Suspension Order” means a written notice given by the Buyer to Energyst Media requesting that the publication of the Advertisement should be temporarily suspended (for a period no longer than six (6) months) until further notice; and
“Working Days” means 9am to 5pm any day Monday to Friday inclusive other than Christmas Day, Good Friday, bank and other UK public holidays.
1.2. Where the context so admits, words importing the one gender shall include all other genders and words importing the singular shall include the plural and vice versa. A reference to a statute, statutory provision or other legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment.
2. Application of these Terms and Conditions
2.1. All Advertisements accepted for publication by Energyst Media are accepted subject to these terms and conditions which shall apply to the exclusion of all other terms and conditions (including any which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). Any variation to these terms and conditions and any representations about the Advertisement shall have no effect unless expressly agreed in writing and signed by an authorised representative of ENERGYST MEDIA. The Booking Form shall form part of these terms and conditions.
2.2. Unless circumstances specifically dictate otherwise in connection with the publication of an Advertisement in an Online Publication, no order placed by the Buyer shall be deemed accepted by Energyst Media until the Advertisement Confirmation is issued.
2.3. Notwithstanding any other provision of these terms and conditions, nothing herein shall require Energyst Media to do or omit to do anything which would contravene any applicable laws or regulations including, but not limited to, the Data Protection Act 1998, the Gambling Act 2005 and the Consumer Protection from Unfair Trading Regulations 2008.
3. The Buyer’s Obligations
3.1. The Buyer hereby warrants, represents and undertakes to Energyst Media that:
a) in relation to any and all Advertisements the Buyer contracts with Energyst Media as principal notwithstanding that the Buyer may be acting directly or indirectly for the Advertiser or in any other representative capacity;
b) should the Buyer change its name, trading style, identity, address, or should any other details disclosed by the Buyer to Energyst Media change, the Buyer must give written notice to Energyst Media within 5 Working Days of such change(s);
c) any and all other Advertiser Dependencies will be met and, unless otherwise agreed in writing by Energyst Media, all copy for any Advertisements will be delivered to Energyst Media in an approved digital format and/or file configuration and, in the case of an Advertisement to be published in a Print Publication, delivered at least 14 Working Days prior to the Copy Deadline;
d) the publication of the Advertisement by Energyst Media (either in the Print Publication or the Online Publication or both, as the case may be) in the form originally submitted by the Buyer (or as amended pursuant to Condition 4 below) will not breach any contract with a third party or infringe any copyright, trade mark or other proprietary right of any third party or otherwise be unlawful or render Energyst Media liable to any proceedings, claims, demands, costs or expenses or any other loss whatsoever;
e) in the case of any Advertisement submitted for publication by the Buyer which contains the name or pictorial representation, whether photographic or otherwise, of any living person or any part of the anatomy of any living person or any material by which any living person may be identified, the Buyer or the Advertiser has obtained the authority of that living person to make use of his or her name, identity, image, representation and/or copy;
f) in relation to any financial promotion (as defined under the Financial Services and Markets Act 2000), the Advertiser is, or its content have been approved by, an authorised person within the meaning of the Act or the Advertisement is otherwise permitted under the Act, under the Financial Promotion Order 2005 or under any other legislation subordinate to the Act;
g) the Advertisement complies with the requirements of all relevant legislation (including subordinate legislation, the rules of statutorily recognised regulatory authorities and the law of the European Economic Community) and applicable laws for the time being in force or applicable to the United Kingdom;
h) all advertising copy submitted to Energyst Media is legal, decent, honest and truthful, and complies with the British Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority;
i) all instructions, artwork or other material submitted to Energyst Media by electronic means shall not contain software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and shall not be corrupted;
j) any information supplied in connection with the Advertisement is accurate, complete and true;
k) where the Buyer is the Advertiser’s agent, the Buyer is authorised by the Advertiser to place the Advertisement with Energyst Media and the Buyer will indemnify Energyst Media against any claim made by the Advertiser against Energyst Media arising from publication of the same; and
l) the Buyer has retained sufficient quantity and quality of any artwork, film or other materials and copy relating to the Advertisement as Energyst Media shall not be liable for the loss of or damage to any of these items submitted to Energyst Media.
4. Advertisements: Copy, Alterations, Accuracy, Publication, etc
4.1. Notwithstanding Condition 3 above Energyst Media shall be entitled at any time to require the Buyer to amend any artwork, materials and copy for and relating to any Advertisement, or refuse (without notice) to publish any Advertisement for the purpose of:
a) complying with any legal or moral obligations placed on Energyst Media or the Buyer or the Advertiser; or
b) avoiding the infringement of (i) the rights of any third party or (ii) the British Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority or (iii) any other applicable law; or
c) meeting to Energyst Media’s reasonable satisfaction (i) the production and quality specifications stipulated on the Rate Card or (ii) any other Advertiser Dependencies.
4.2. Energyst Media reserves the right at its discretion and without notice to the Buyer:
a) to decline to publish, or omit, alter, suspend or change the position of any Advertisement otherwise accepted for insertion, or publication. However, Energyst Media will endeavour to comply with the reasonable and practicable wishes of the Buyer although Energyst Media does not warrant the date of publication or insertion, the wording, or the quality of the reproduction of the Advertisement; and
b) to destroy all artwork, copy or other materials submitted by the Buyer and which have been in Energyst Media’s possession for more than six (6) months from the date of their last use by Energyst Media, unless specific written instructions have been received from the Buyer to the contrary.
4.3. All copyright and all other rights of a similar nature that are created or exist in material originated by Energyst Media in connection with the publication of the Advertisement remains vested in Energyst Media.
4.4. Advertisements: Online Publications
4.4.1. The Buyer shall submit copy for the Advertisement at least 48 hours prior to the intended go-live date. If the Buyer submits its copy late then Energyst Media reserves the right to publish the Advertisement at a time of its choosing.
4.4.2. If the Buyer is supplying creative content in the form of an Advertisement that links to another website the Buyer must inform Energyst Media in writing at least 2 Working Days prior to the intended go-live date.
4.4.3. If an Advertisement links to another website the Buyer is responsible for maintaining the link and for the content of the linked-to website. Energyst Media may remove any Advertisement which contains content or links to a website which, in Energyst Media’s discretion, is (or is likely to be) defamatory or objectionable or otherwise likely to bring Energyst Media into disrepute. The Buyer will indemnify Energyst Media from and against any claims or liability suffered or incurred by Energyst Media arising in any connection from links contained in an Advertisement.
4.4.4. If Energyst Media receives complaints about the content of an Advertisement it may, at its discretion, remove the Advertisement from display without reference or liability to the Buyer or Advertiser.
4.4.5. The provisions set out in this condition 4.4 apply in addition (save where the context expressly permits) and without prejudice to all other provisions set out in these terms and conditions.
5. Advertisements: Responsibilities and Liability
5.1. The Buyer shall indemnify and keep indemnified Energyst Media against all proceedings, claims, demands, damages, costs, expenses or any other loss whatsoever arising directly or reasonably foreseeable as a result of (i) the publication of the Advertisement or (ii) any breach of the Buyer’s obligations under these terms and conditions or implied by law.
5.2. With regard to the actual or intended insertion of an Advertisement in any Print or Online Publication Energyst Media shall not be responsible to the Buyer or liable for:
a) checking the correctness of the Advertisement in the form it is received from the Buyer;
b) any error in the Advertisement in the form it is received from the Buyer;
c) the wording, representation, placement or quality of colour reproduction of the Advertisement;
d) the actual positioning or prominence of the Advertisement in the Print and/or Online Publication (as the case may be);
e) the repetition of any error in an Advertisement ordered for more than one insertion;
f) the distribution of the Print or Online Publication in a specific geographical area;
g) the failure, corruption or malfunction of any system of electronic publication, whether by means of electronic storage, display or retrieval equipment or otherwise;
h) any order given by the Buyer in the nature of a “stop order” or cancellation or transfer of the publication of the Advertisement unless it is given to Energyst Media in writing, in the case of an Advertisement to be published in a Print Publication, at least 28 Working Days before the Copy Deadline and, in the case of an Advertisement to be published in an Online Publication, at least 72 hours prior to the intended go-live date;
i) any loss whatsoever caused by delay or failure by Energyst Media to issue the Print or Online Publication on the due date (or such other date of release, display or publication, as the case may be), or Energyst Media’s decision to suspend the Print and/or Online publication or cease the Print or Online Publication altogether;
j) the payment of any damages or other compensation for breach of contract because of Energyst Media’s failure to perform any of its obligations under these terms and conditions if such failure is caused by anything beyond Energyst Media’s reasonable control (that is to say as a result of force majeure) including acts or threats of terrorism, strikes, lock-outs or other industrial actions or trade disputes, pandemic, epidemic or other widespread illness whether involving Energyst Media’s employees or those of any third party;
k) any loss whatsoever caused as a consequence of any instructions, artwork or any other material relating to the Advertisement being submitted by the Buyer in electronic form that is in breach of the warranty at Condition 3(h) above;
l) any matter of complaint, claim or query (whether in relation to the Advertisement, in which case Condition 5.3 shall apply, or Energyst Media’s invoice related thereto) unless raised with Energyst Media in writing within 5 Working Days following the publication of the Advertisement or at the date on which it is claimed the Advertisement was intended to appear, or the receipt by the Buyer of the invoice giving rise to it; and
m) any failure of the Advertisement to meet or generate any target response levels or page impressions.
5.3. Subject to Condition 5.2, if an Advertisement contains an error caused by Energyst Media and this detracts materially from the Advertisement then provided the Buyer gives written notice to Energyst Media of the error in the Advertisement (as the case may be):
a) within 5 Working Days of its publication or display in the case of a single order; or
b) before either the Copy Deadline for its next insertion or subsequent go live date (as the case may be) in the case of a series order Energyst Media will at its discretion either:
c) give the Buyer credit for the cost of the Advertisement containing the error; or
d) publish the Advertisement for a second time without charge to the Buyer and to that extent such credit or re-publication (as the case may be) shall be Energyst Media’s maximum liability to the Buyer. Such matter dealt with under this Condition 5.3 shall not affect the liability of the Buyer for payment by the due date of Energyst Media’s charges for the Advertisement and all other Advertisements.
5.4. Except to the extent specified in Condition 5.3, Energyst Media shall not be liable for any loss or damage suffered by the Buyer (or the Advertiser) as a result of any total or partial failure of publication, distribution or availability of any Print or Online Publication in which any Advertisement is scheduled to be included, or for any error, misprint or omission in the printing of any Advertisement.
5.5. The total liability of Energyst Media to the Buyer for any act or omission of Energyst Media, its employees or agents relating to any Advertisement shall not exceed the amount of the full refund of any price paid to Energyst Media for the Advertisement or the cost of a reasonably comparable further or corrective Advertisement. Without limiting the foregoing, Energyst Media shall not be liable for any (i) loss of profits, goodwill or business or (ii) indirect or consequential loss.
6. Payment Terms
6.1. Payment for any Advertisement or any other goods or services is due in advance of first publication of the Advertisement in accordance with the terms set out in the Payment Schedule in this clause unless Energyst Media has previously agreed in writing to open a credit account for the Buyer, and where a credit account is opened then payment of the account shall become due 30 days after the date of Energyst Media’s invoice and the Buyer will ensure that payment is received by Energyst Media no later than this due date. The Buyer must submit all information requested by Energyst Media (including, but not limited to, any relevant purchase order number) and in accordance with Energyst Media’s instructions and deadlines in order for Energyst Media to generate its invoices, and failure to supply such information in accordance with any such request or instructions shall not excuse late or non-payment.
Payment for: Recruitment Print, Display, Digital and Classified
a) Full payment of 100% required 2 weeks in advance of the first date of publication of the Advertisement (“Minimum Payment Price”);
Payment for: Sponsorship of Market Intelligence Reports
b) Payment of 50% will be required 30 days before the agreed publication date. Final 50% payment will be required upon publication.
All the rates and charges payable under or with reference to these terms and conditions are subject to and exclusive of Value Added Tax.
6.2. If the Buyer:
a) fails to pay Energyst Media’s invoice in accordance with the Payment Schedule in Condition 6.1 above; or
b) is in breach of any obligation under these terms and conditions, Energyst Media shall be entitled to terminate its contract with the Buyer immediately (without prejudice to any other right or remedy available to Energyst Media whether under these terms and conditions or otherwise) and, without prejudice to Energyst Media’s right to terminate its contract with the Buyer in such circumstances, the outstanding balance owed by the Buyer shall become due and payable immediately.
6.3. Without prejudice to Condition 6.4, Energyst Media shall be entitled to:
a) charge interest on any outstanding balance owed to Energyst Media at the rate of 4% above the base rate of HSBC Bank plc from the date that the invoice became due for payment until the date it is paid in full (whether before or after Judgment);
b) charge an administration fee of £25 if any cheque drawn in its favour by the Buyer in purported satisfaction of any unpaid invoice is dishonoured on presentation; and
c) instruct a debt collection agency (apart from solicitors) to recover any sum due and in that case all charges incurred by Energyst Media as a result of such instruction shall be payable by the Buyer in any event upon demand.
6.4. Energyst Media reserves the right at its discretion and without notice to the Buyer:
(a) to charge the Buyer for any extra production and colour processing costs because of any act or omission by the Buyer to supply artwork, film, copy or other materials of sufficient quality or otherwise in accordance with the Advertiser Dependencies; and
(b) to change any matters shown on the Rate Card, including in particular (but not limited to), its scale of advertisement rates at any time.
6.5. Any Currency conversions necessary to prepare an invoice shall be calculated at the rate quoted by HSBC plc at the date of invoice
7. Cancellation & Termination
7.1. Energyst Media shall not be bound by any request from the Buyer to stop, cancel or suspend an Advertisement unless such request is in writing and then confirmed in writing by Energyst Media.
7.2. Without prejudice to Condition 7.1, the following costs remain due on cancellation, and the Buyer acknowledges that these charges represent a genuine pre-estimate of Energyst Media’s losses:
a) notice of cancellation received 29 –42 days or more before first publication, 25% of total booking fee due
b) notice of cancellation received 15-28 days before first publication, 50% of total booking fee due
c) notice of cancellation received 0-14 days before first publication, 100% of total booking fee due
a) notice of cancellation received 28 days or more before first display, 25% of total booking fee due
b) notice of cancellation received 8-27 days before first display, 50% of total booking fee due
c) notice of cancellation received 0-7 days before first display, 100% of total booking fee due
Recruitment and classified advertising
a) notice of cancellation received 28 days or more before first publication, 25% of total fee due
b) notice of cancellation received 8-27 days before first publication, 50% of total fee due
c) notice of cancellation received 0-7 days before first publication, 100% of total fee due
If the Buyer has paid sums for Advertisements in advance and is entitled to a refund, Energyst Media shall use its reasonable endeavours to pay such refund the Buyer within 30 working days of receipt of the written notice of cancellation.
Market intelligence report sponsorship
a) notice of cancellation received 60 days or more before publication, 50% of total fee due
b) notice of cancellation received 30-59 days before publication, 75% of total fee due
c) notice of cancellation received 0-29 days before publication, 100% of total fee due
7.3. Should the Buyer, part way through wish to stop or cancel an Advertisement that is being displayed in an Online Publication for an agreed period of time in excess of 14 days then the Buyer must give written notice to Energyst Media of its request to stop or cancel the Advertisement and all charges connected with the display of the Advertisement shall, unless otherwise expressly agreed by Energyst Media in writing, be non-refundable.
7.4. Energyst Media shall be entitled (without prejudice to any other remedy available to it) to treat this contract as repudiated if the Buyer or the Advertiser;
(a) being an individual dies or makes voluntary arrangement with his creditors or his estate becomes subject to an administration order or he becomes bankrupt;
(b) being a company becomes insolvent, has a receiver appointed to manage its assets or it enters into liquidation or commences to be wound up (other than for the purpose of amalgamation or reconstruction);
(c) allows an encumbrance to take possession of any of its property or assets; or
(d) is unable to pay its debts as they fall due or ceases or threatens to cease to carry on business.
8.1. Governing Law. These terms and conditions (and Energyst Media’s contract with the Buyer) shall be governed by and construed according to English Law and the parties submit to the exclusive jurisdiction of the English courts.
8.2. Severance. If any provision of these terms and conditions is or becomes invalid, illegal or void, that shall not affect the validity and legality of the other provisions.
8.3. Waiver. No failure or delay by Energyst Media to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
8.4. Third Parties. None of the provisions of these terms and conditions are intended to confer a benefit on or be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.