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1.1 In these Conditions: “Client” means the person named in the Client Agreement for whom the Supplier has agreed to provide the Specified Service in accordance with these Terms and Conditions; “Contract” means the contract for the provision of the Specified Service; “Document” includes, in addition to a document in Writing, advertising copy, a map, plan, design, drawing, picture or other image, or any other record of any information in any form; “Client Agreement” means the sheet to which these Terms and Conditions are appended; “Client Material” means any Documents or other materials, and any data or other information provided by the Client relating to the Specified Service; “Supplier Material” means any Documents or other materials, and any data or other information provided by the Supplier relating to the Specified Service; “Specified Service” means the provision of media buying services by the Supplier to the Client in the publications/media set out in the Client Agreement and in such other publications/media as may be agreed between the parties in Writing from time to time; “Supplier” means Concept Television Studios Limited; “Supplier’s Charges” means the charges relating to the Specified Service as set out in the Client Agreement or otherwise notified to the Client from time to time; “Writing” and any similar expression includes facsimile transmission and comparable means of communication including electronic mail.
1.2 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2. Supply of the Specified Service
2.1 The Supplier shall provide the Specified Service to the Client subject to these Terms and Conditions. Any changes or additions to the Specified Service or these Terms and Conditions must be agreed in Writing by the Supplier and the Client.
2.2 The Client shall at its own expense supply the Supplier with all necessary Client Material, Documents or other materials, and all necessary data or other information relating to the Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Client shall ensure the accuracy and compliance with all applicable laws and codes of conduct of all Client Material.
2.3 The Client shall at its own expense retain duplicate copies of all Client Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. All Supplier Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.
2.4 The Specified Service shall be provided in accordance with the Client Agreement, subject to these Terms and Conditions.
2.5 The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document of the Supplier relating to the provision of the Specified Service without any liability to the Client.
2.6 The Supplier may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Specified Service.
2.7 During the subsistence of the Contract the Client agrees that the Supplier will have the sole and exclusive right to provide the Specified Service to the Client.
3.1 Subject to any special terms agreed, the Client shall pay the Supplier’s Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Specified Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Material or any other cause attributable to the Client.
3.2 The Supplier shall be entitled to vary the Supplier’s Charges from time to time by giving not less than three months’ written notice to the Client.
3.3 All charges quoted to the Client for the provision of the Specified Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.4 The Client shall pay to the Supplier the price for the Specified Service as shown in the Supplier’s invoice and in accordance with any payment schedule specified by the Supplier. All payments shall be made in cleared funds to such bank account as the Supplier may specify. If so agreed between the Supplier and the Client, the Supplier shall be entitled to invoice the Client within one month of each occurrence of providing the Specified Service or at such other times as may be agreed with the Client.
3.5 The Supplier’s Charges and any additional sums payable shall be pre-paid by the Client (together with any applicable Value Added Tax, and without any set off or other deduction) within 7 days of the date of the Supplier’s invoice.
3.6 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 8% above the base rate from time to time of Lloyds TSB Bank plc from the due date until the outstanding amount is paid in full.
4. Rights in Client Material and Supplier Material
4.1 The property and any copyright or other intellectual property rights in:
4.1.1 any Client Material shall belong to the Client;
4.1.2 any Supplier Material shall, unless otherwise agreed in Writing between the Client and the Supplier, belong to the Supplier, subject only to the right of the Client to use the Supplier Material for the purposes of utilising the Specified Service.
4.2 Any Client Material or other information provided by the Client which is so designated by the Client and any Supplier Material shall be kept confidential by the Supplier, and all Supplier Material or other information provided by the Supplier which is so designated by the Supplier shall be kept confidential by the Client; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
4.3 The Client warrants that any Client Material and its use by the Supplier for the purpose of providing the Specified Service complies in all respects with all relevant legislation and that it will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such lack of compliance or infringement.
4.4 Subject to paragraph 4.3, the Supplier warrants that any Supplier Material and its use by the Client for the purposes of utilising the Specified Service complies in all respects with all relevant legislation and that it will not infringe the copyright or other rights of any third party, and the Supplier shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such lack of compliance or infringement.
5. Warranties and Liability
5.1 The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Client Agreement and at the intervals and within the times referred to in the Client Agreement. Where the Supplier supplies in connection with the provision of the Specified Service any goods (including Supplier Material) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
5.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Client.
5.3 Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Terms and Conditions, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Specified Service or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Specified Service, except as expressly provided in these Terms and Conditions.
5.4 The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Service if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
6.1 The Client shall be entitled to terminate the Contract at any time by giving not less than 6 weeks’ written notice to the Supplier. If the Client uses another media agency to provide all or any of the Specified Service during the contractual period set out in the Client Agreement, then the Supplier will be entitled to any commission or payments it would have received from the Client if the Supplier had provided the Specified Service for the full term of the Contract.
6.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving notice in Writing to the other if the other commits any breach of these Terms and Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
6.3 On termination of the Contract, the supplier shall return any Client Materials to the Client and each party shall return to the other party or destroy (at the option of the party who owns the confidential information) any and all confidential information belonging to the other party which is in its possession and/or under its control and delete such confidential information from any computer system or other form of data retention.
7.1 These Conditions (together with the special terms, if any, set out in the Client Agreement) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in Writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
7.2 A notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
7.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
7.4 If any provision of these Terms and Conditions is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected.
7.5 English law shall apply to the Contract, and the parties agree to submit to the non exclusive jurisdiction of the English courts.