Terms and Conditions of Business
Terms and Conditions for Kingfisher Media Ltd for print and digital publishing
These terms and conditions (the Conditions) are issued in connection with any Order placed by an Advertiser, with the Publisher, for an advertisement in a Publication. These Conditions contain the contractual terms which shall govern the relationship between the Publisher and the Advertiser for the duration and/or completion of the relevant Contract. By entering into a Contract with the Publisher, the Advertiser agrees to be bound all of the terms set out in these Conditions. 1 Definitions. In these Conditions, the following definitions apply: Advertisement: the advertisement provided by the Advertiser which the Advertiser intends to be published in a Publication by the Publisher. Advertiser: the person, firm and/or company which places an Order with the Publishers (as identified in the relevant Order) and shall include successors in title and assignees, any appointed Agency and any such Agency’s successors in title and assignees. Agency: any agency or agent appointed by, and placing Orders on behalf of, an Advertiser. Business Day: a day, other than Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London and Business Days means more than one of them. Commencement Date: The date of the Order Form or alternatively, if earlier, the date upon which the Advertiser makes a written proposal to the Publisher in accordance with Clause 3.1 of these Conditions. Conditions: these terms and conditions as amended from time to time in accordance with clause 2.4 of these Conditions. Contract: the contract between the Publisher and the Advertiser for the supply of products and/or services, which is formed at the point of acceptance of the Order by the Publisher, and which is subject to these Conditions. Copy: any advertising materials submitted to the Publisher by the Advertiser. Cost of the Order: the price to be paid by the Advertiser, to the Publisher, for the Advertisement. Data Protection Legislation: all data protections laws currently in force in England and Wales. Editorials: articles in the Guide, which provide more information about the local area, and some of the advertisers featured in the Guide. Final Copy Date: the date agreed between the Publisher and Advertiser which will be the latest date for the final version of the Advertisement. Force Majeure Event: an event beyond the reasonable control of the parties including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, or outbreak of communicable disease, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Publishers or subcontractors. GDPR: General Data Protection Regulation ((EU) 2016/679) as supplemented by the Data Protection Act [2018]. Guide: the Publisher’s Regional and/or City Guides. Intellectual Property: any rights granted to creators and owners of works that are the result of human intellectual creativity, including but not limited to all patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights, and all applications and registration of such worldwide schematics, industrial models, inventions, know-how, trade secrets, computer software programs, and any other intangible proprietary information (including design and layout), and which either subsist or will subsist now or in the future in any part of the world. Order: the order for products and/or services given to the Publisher by the Advertiser, and set out on either the Order Form, or made by written notification. Order Form: the Published Standard pro forma Order document completed by the Publisher and provided to the Advertiser, containing the proposal or such other written notification as the Publisher may in its absolute discretion accept, a copy of which is attached under Schedule 1 of these Conditions. Personal Data: has the meaning given in the applicable Data Protection Legislation. Printing Deadline: the date upon which the Publisher sends the Guide to be printed. Proposal: Publication: any publication published by the Publisher, which will include both printed and electronic versions (such as a mobile phone or tablet app). Publisher: Kingfisher Media Limited (company number 05942151) whose registered office is 246 Park View, Whitley Bay, Tyne and Wear, NE26 3QX, including its agents and its employees.2 CONSTRUCTION
The following statements shall apply to these Conditions: (a) a ‘person’ includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality); (b) a reference to a ‘party’ includes its personal representatives, successors or permitted assigns; (c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; (d) any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (e) a reference to ‘writing’ or ‘written’ includes e-mails, but not faxes; (f) a reference to ‘day’ means a calendar day and not a Business Day, unless otherwise specified in these Conditions.3 ORDER AND FEES
3.1 Any Order placed by an Advertiser, or the Advertiser’s Agent, must be submitted either on the Publisher’s official Order Form (a copy of which is attached under Schedule 1 of these Conditions), or submitted in writing to the Publisher, by the Advertiser or the Advertiser’s Agent, notifying the Publisher that the proposal is acceptable. 3.2 Persons signing the Order on behalf of the Advertiser warrant that they have the authority to do so from the person, firm and/or company on whose behalf they are acting, or purporting to act, and they must provide full contact details (including, name and registered address of both themselves and the person, firm and/or company on whose behalf they are acting). Failure to comply with these requirements means that the individual in question agrees that they will be personally liable for the Publisher’s fees, and shall fully and effectively indemnify the Publisher against any/all losses which arise from that transaction. 3.3 If an Agency places an Order on behalf of any Advertiser, then that Agency warrants and represents that it is authorised to enter into the Order on behalf of its client, and that both the Agency and its client will be jointly and severally liable for all of the Publisher’s fees, as set out in these Conditions. 3.4 The prices quoted for displaying advertisements includes the creation of rough design work through to and including, finished artwork (not including the taking of photographs, the design of corporate logo styles, tint laying, or colour separations), and the submission of a proof for approval by the Advertiser prior to publication. If the Advertiser rejects more than two proofs prepared by the Publisher, then the Publisher reserves the right to charge additional reasonable fees for every subsequent proof. 3.5 The Contract shall only be created when the Publisher formally accepts the Order by return of order form or confirmation by email.4 ADVERTISEMENT DESIGN
4.1 If the Publisher has contributed to an Advertisement in a creative capacity (including by way of designing, reworking, amending or similar), then any resulting copyright and/or Intellectual Property created in the course of providing these services/contributions shall vest in the Publisher. 4.2 The Advertiser agrees that the Publisher has the right and sole discretion, and without any liability to the Advertiser, to: (a) make any alteration to any/all Advertisements that it considers necessary (including amendments to the Advertisement’s artwork, positioning or dimensions) to ensure the Advertisement meets the Publisher’s requirements in relation to publication deadlines, technical specifications, limitations of the Publisher, and to ensure compliance with all applicable laws, or to prevent the infringement of any third party’s Intellectual Property rights; (b) decline to publish any Advertisement without giving a reason.5 ADVERTISER’S MATERIALS
5.1 The Advertiser agrees to arrange for the delivery, and where appropriate, the return of these materials to and from the Publisher at its own expense, including the appropriate transport and insurance costs. 5.2 The Publisher will take all reasonable precautions to prevent damage to any such material/s, but the Publisher shall not be liable for any loss, damage, or delay in the delivery of these materials, howsoever caused. 5.3 The Publisher will destroy or permanently delete (if stored in an electronic format) any such materials in its possession six months from the Final Copy Date, without further notice to the Advertiser, unless the Advertiser and Publisher agree in writing to extend this time-period.6 NON-EXCLUSIVITY
6.1 Unless otherwise agreed in writing with the Publisher, the Advertiser acknowledges that the Guide and/or Editorials may carry advertisements and/or endorsements from any other organisation, including the Advertiser’s competitors, or such other third parties which offer similar goods or services to those offered by the Advertiser.7 PROOFS
7.1 The Advertiser shall supply the Publisher with Copy details for the Advertisement, finished artwork or entry on or before the Final Copy Date, otherwise the Publisher will print the Advertiser’s name, address, telephone number, and website details as set out in the Order, or at the Publisher’s absolute discretion, omit the Advertisement in which case the Advertiser shall remain liable for the full space charges. 7.2 It is the responsibility of the Advertiser to check the proof and notify the Publisher of any errors within seven days of receiving the proof. 7.3 The Advertiser agrees that if the submitted proof has not been returned to the Publisher within seven days of submission, either signed as approved, or accompanied by a letter signifying rejection of the proof, then the Publisher will be entitled to assume that the proof is correct and it will be published accordingly without any further liability to the Publisher.8 CANCELLATION
8.1 The Publisher reserves the right, without incurring any liability, in respect of any loss or damage sustained by the Advertiser to cancel any Order, or part thereof, by giving reasonable notice to the Advertiser. If the Publisher cancels the Order before the Guide is printed, or otherwise in respect of any error or omission by the Publisher, then the Advertiser shall be entitled to a refund or adjustment (which the Publisher deems reasonable) to the charge for the Advert. 8.2 The Publisher also reserves the right to omit or refuse to publish, or to change the position of, or suspend any Advertisement or any part thereof, or series of Advertisements, notwithstanding the fact that the Advertisement has been accepted for publication, without incurring any liability in respect to any loss or damage sustained by the Advertiser. 8.3 Where any subsequent Order/s are placed by the Advertiser with the Publisher, and the Publisher’s rates have changed, charges in relation to any subsequent Order(s) placed by the Advertiser shall be at the Publisher’s up to date rate at the time. 8.4 If the Advertiser wishes to cancel either all or part of an Order, then the Advertiser must notify the Publisher in writing. Cancellation will only take effect when the Publisher confirms the cancellation to the Advertiser in writing and will be subject to the following charges: (a) Subject to clause (b), cancellation by the Advertiser within seven calendar days of the Commencement Date will incur a charge of 25% of the cost of the Order in lieu of any work undertaken by the Publisher with regard to the Advertisement; otherwise the full amount agreed under the Contract will become due. (b) Orders placed less than seven calendar days from the Print Deadline cannot be cancelled.9 EDITORIAL
9.1 The Publisher commissions feature writers who are independent of the Publisher and who prepare in good faith, an Editorial for each new edition of the Guide. The Advertiser agrees that: (a) the Editorial may refer to businesses and companies which could be in competition with the Advertiser; (b) the Publisher does not make any warranties that the Advertiser will be mentioned in the Editorial; (c) the Guide and Editorial are prepared in advance and although the Publisher takes reasonable steps to ensure they are up-to-date and accurate, the Publisher does not make any warranties as to their content.10 DISTRIBUTION
10.1 The Publisher will make reasonable efforts to ensure that the Guides are distributed to and made available for viewing within the hotels listed in the media pack, copies of which are available on request. The Publisher does not accept liability for any failure by any courier company instructed to deliver the Guides to the hotels to make such delivery, or any failure by the hotels to make the Guides available for viewing by their guests for any reason.11 PUBLICATION DATES
11.1 When the Advertiser places the Order, the Publisher will give a date for the publication of the next Guide, which shall be an estimate only. The Advertiser agrees that time shall not be of the essence relating to such publication dates.12 CHARGES AND PAYMENT
12.1 The prices for the Publisher’s services will be set out in the relevant Order, and the Publisher reserves the right to increase the price due to: (a) any factor beyond the control of the Publisher (including taxes and duties); or (b) any request by the Advertiser to make changes to the Order; or (c) any delay caused by any instructions of the Advertiser; or (d) failure of the Advertiser to give the Publisher adequate or accurate information or instructions. 12.2 The Publisher shall invoice the Advertiser on or at any time after the Final Copy Date, and the Advertiser shall pay each invoice submitted by the Publisher: (a) within 28 days of the date of the invoice unless agreed otherwise in writing by the Publisher’s financial controller or managing director; (b) in full and in cleared funds to a bank account nominated in writing by the Publisher; and (c) time shall be of the essence in respect of such payment. 12.3 All amounts payable are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). 12.4 If the Advertiser fails to make any payment due to the Publisher under the Contract by the due date for payment, then the Advertiser shall pay interest on the overdue amount at the rate of 3% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date of payment, until actual payment of the overdue amount, whether before or after judgment. The Advertiser shall pay the interest together with the overdue amount. 12.5 The Advertiser shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Publisher may, without limiting its other rights or remedies, set off any amount owing to it by the Advertiser against any amount payable by the Publisher to the Advertiser.13 WARRANTY
13.1 The Advertiser warrants to the Publisher that it is the owner, or authorised user, of any/all Intellectual Property rights containing or otherwise affecting the Advert, and shall indemnify the Publisher from and against all proceedings, claims, demands and any other costs and expenses made or pursued against the Publisher, in connection with the Advert, to include, but without prejudice to the generality, any such proceedings, claims, demands or costs and expenses made in respect of any/all Intellectual Property rights, defamation, breach of any statutory enactment, or regulations made there under, or any other matter whatsoever. 13.2 The Advertiser warrants that the goods and/or services advertised comply with all statutory and common law requirements applicable thereto from time to time, and the Advertiser shall indemnify the Publisher against any costs, claims, demands and expenses in relation to, or in respect of, any infringement thereof.14 LIMITATION OF LIABILITY
14.1 Nothing in these Conditions shall limit or exclude the Publisher’s liability to the Advertiser for death or personal injury caused by the Publisher’s negligence, or the negligence of the Publisher’s employees, agents or subcontractors or for fraud or fraudulent misrepresentation; 14.2 The Publisher’s total liability to the Advertiser in respect of all other losses arising from with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the amount the Advertiser paid the Publisher under the original Contract. 14.3 The clauses in this section shall continue to have effect once the Contract is complete, or if the Contract has been terminated.15 LIABILITY FOR FORCE MAJEURE EVENTS
15.1 The Publisher shall not be liable to the Advertiser because of any delay or failure to perform the Publisher’s obligations set out in this Contract, where such failure results from a Force Majeure Event. 15.2 If the Force Majeure Event prevents the Publisher from providing any of the services for more than six weeks, the Publisher will, without limiting the Publisher’s other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Advertiser, and the Advertiser will only be liable to the Publisher for the amount of work the Publisher had done before the date of the first day upon which the Force Majeure Event occurred.16 USE OF PERSONAL DATA
16.1 Any/all Personal Data provided to the Publisher by the Advertiser shall be used: (a) for the provision of the services; and (b) to process the Advertiser’s payment for such goods and services; and (c) unless the Advertiser notifies the Publisher in writing, for marketing purposes. 16.2 The Advertiser agrees that the Publisher may pass such Personal Data to credit reference agencies who may keep a record of any search that they do. 16.3 Subject to clause 17.3, the Publisher will not provide the Advertiser’s Personal Data to any other third party except where required to do so by law17 DATA PROTECTION
17.1 Both parties will at all times comply with all applicable requirements under the relevant Data Protection Legislation. This clause is in addition to, and does not relieve, remove, or replace either party’s separate obligations under all applicable Data Protection Legislation. 17.2 The parties acknowledge that for the purposes of the relevant Data Protection Legislation, the Publisher is the data controller and data processor (where Data Controller and Data Processor have the meanings as defined in the applicable Data Protection Legislation). 17.3 Without prejudice to the generality of clause 17.1 the Advertiser will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the Personal Data to the Publisher for the duration and purposes of the Contract. 17.4 Without prejudice to the generality of clause 17.1, the Publisher shall, in relation to any Personal Data processed in connection with the performance by the Publisher of its obligations under the Contract: (a) process that Personal Data only on the written instructions of the Advertiser unless the Publisher is required to fulfil any obligation(s) under applicable Data Protection Legislation to process such Personal Data. Where the Publisher is relying on the laws of any applicable Data Protection Legislation as the basis for processing Personal Data, the Publisher shall promptly notify the Advertiser of this before performing the processing required, unless the applicable Data Protection Legislation prohibit the Publisher from notifying the Advertiser. (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Advertiser, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and (d) not transfer any Personal Data outside of the European Economic Area (EEA) unless the prior written consent of the Advertiser has been obtained and the following conditions are fulfilled: (i) The Advertiser or the Publisher has provided appropriate safeguards in relation to the transfer;- the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- the Publisher complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
- the Publisher complies with reasonable instructions notified to it in advance by the Advertiser with respect to the processing of the Personal Data;
- assist the Advertiser, at the Advertiser’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Advertiser without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Advertiser, delete or return Personal Data and copies thereof to the Advertiser on termination of the Contract unless required by the laws of any applicable Data Protection Legislation to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with thisclause 17.
18 OTHER IMPORTANT TERMS
18.1 The Publisher may transfer its rights and obligations under the Contract to any other organisation, but the Publisher will notify the Advertiser in writing if this happens. This transfer will not affect the Advertiser’s rights or the Publisher’s obligations under the Contract. 18.2 The Advertiser may only transfer its rights and obligations under the Contract to another person/entity if the Publisher agrees so in writing. 18.3 Neither party shall have authority to act as agent for, or to bind the other party in any way.19 NOTICES
19.1 Any notices or deliveries required in the performance of the Contract will be deemed received:- by first-class post: two Business Days after posting;
- by airmail: seven Business Days after posting;
- by hand: on delivery;
- by facsimile: on receipt of a successful transmission report from the correct number delivered by agent, or seven (7) days after being placed in the post, First Class Post, to the parties at the addresses contained in the relevant Contract or as the parties may later designate in writing.
- the Advertiser at the address listed on the relevant Contract;
- the Publisher at the address listed on the relevant Contract, or as listed on the Publisher’s website.
20 SEVERABILITY
20.1 Each of the paragraphs of these Conditions operates separately. If any part of these Conditions is held by a court or relevant authority to be invalid, it is the intent of the parties that such paragraph be reduced in scope only to the extent deemed necessary to render the provision reasonable and enforceable and the remaining paragraphs of these Conditions will in no way be affected or invalidated as a result.21 VARIATION
21.1 Except as set out in these Conditions, no variation of the Contract, Order, Order Form or Publication shall be effective unless it is in writing and signed by the parties (or their authorised representatives).22 WAIVER
22.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
