Terms of Sale and Terms and Conditions applying to advertising agreement between Radio Maxx and the Client.
1. THE AGREEMENT:
This Sale & Purchase or Advertising Contract agreement (“the agreement”) is made and is effective from Signature Date Between MXD Media Ltd. [Company Registered in England and Wales, Registration No. 12731454], ADDRESS: Office 575, 321-323 High Road, Chadwell Heath, Essex, England, RM6 6AX, Hereinafter called and T/A Radio Maxx and the Client mentioned overleaf, or as attached, Hereinafter Called 'The Client' - Agrees to the Terms and Conditions mentioned above and below:
1.1 This agreement shall commence on the signature date and shall continue unless terminated by either party with 30 days’ notice in writing.
2.1. In this Agreement the singular includes the plural and vice versa and any gender includes any other gender.
2.2. The clause headings do not form part of this Agreement and shall not be taken into account in its construction or interpretation.
2.3. The client shall not present a brand, product, or service that sounds, looks, or could reasonably be confused with a Radio Maxx brand, product, or service.
2.4. Indemnity: The Client shall indemnify Radio Maxx against all actions, proceedings, claims, demands, costs including without prejudice to the generality of this provision the legal costs of Radio Maxx on a solicitor and own Client basis), awards and damages however arising directly or indirectly as a result of the negligence of the Client or any breach or non-performance by the Client or any of the Clients undertakings, warranties or obligations under this Agreement.
2.5. Invalidity: The invalidity or unenforced ability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
3. RATES & CHANGING OF RATES:
3.1. The rate for each broadcast of the advertisement is specified in the “Air Time Planner Schedule” overleaf, or as attached Annex.
3.2. Where the Client enters into a discounted advertising agreement with Radio Maxx which gives discounted rates over a specified, and the Client subsequently cancels their discounted agreement before the due expiry date, the Client shall pay to Radio Maxx an amount equating to the difference between the discounted rate for the period that the Agreement has run and the normal rate that would have been payable had that period been paid at the rate applicable on Radio Maxx’s Advertising Rate Card.
3.3. Radio Maxx reserves the right to change the Airtime or other Advertising Space or Advertising Property or Promotional Property rates, time segments, classifications, digital advertising properties; their specifications, placement, scheduling or other related changes, or any of these terms and conditions by giving not less than 28 days’ notice to the Client and in the event of such a change the rates payable and the terms and conditions applicable shall be those in force at the time of broadcast but the Client shall, by serving written notice on Radio Maxx within 10 days of receiving notice of such change, be entitled to cancel the contract to which the changes notified would otherwise be applicable. Any changes in rates will not affect this agreed Airtime or other Advertising Space or Advertising Property Purchase Cost. This agreed contractual Airtime Purchase Cost will be honoured to the end of the contractual period.
In this Agreement the following terms have the following meanings:
4.1. Airtime: The Radio airtime for the advertisement supplied by Radio Maxx, in respect of the radio station.
4.2. Advertisement: The Advertisement for which the Airtime or other Advertising Space or Advertising Property or Promotional Property is supplied to the Client.
4.3. Contract: The contract or agreement between Radio Maxx and the Client under which the Airtime or other Advertising Space or Advertising Property is supplied by Radio Maxx to the Client.
4.4. Intellectual Property:
4.4.1. All patents, trade and service marks, designs, typographical rights, registered designs, copyrights (including all Copyrights in any drawings, specification, manuals, designs, and computer software), know-how and other confidential information and all other intellectual property rights and rights of a similar character in any part of the world.
4.4.2. All Programs and Advertising materials, designs, outputs developed by Radio Maxx for a Client shall remain the absolute property of Radio Maxx.
4.5. Radio Maxx: Provider of Airtime or other Advertising Space or Advertising Property.
4.6. Radio Maxx: at Office 575, 321-323 High Road, Chadwell Heath, Essex, England, RM6 6AX,
4.7. Client: The person, firm, company, charity, agency, or organisation with whom the contract is made by Radio Maxx.
4.8. Airtime or other Advertising Space or Advertising Property Purchase costs: The sum of [insert], is payable by the Client to Radio Maxx for the services provided;
4.9. Term: as defined overleaf, or as attached Annex.
4.10. Advertisement Schedule Date: As defined overleaf, or as attached Annex.
4.11 Commercial Production: as defined in Clause 8 below.
5.1. Any Advertisement booked in a particular business type or package cannot be utilized for another business type or package.
5.2. Once this contract has been signed and agreed between Radio Maxx and the Client, the Airtime or other Advertising Space or Advertising Property will be reserved and booked for the agreed contract Terms as listed in “Air Time Planner Schedule” overleaf, or as attached.
5.3. When remote contracts are received by email, fax, and post or booked on our website these will be treated as a signed agreement.
5.4. When a contract is signed on behalf of a Person, Limited Company, Public Limited, sole trade, partnership, firm, company, charity, agency or organisation, the signatory of the Client contract will also be deemed to be personally liable and responsible if payment is not made by the Client on the due dates. The signatory of the Client will be treated as a personal guarantor if the Client is in default of payment. Radio Maxx will enforce the payment from the personal guarantor.
5.5. Any Airtime or other Advertising Space or Advertising Property purchased by the Client cannot be resold or assigned to another party without having obtained written consent from Radio Maxx's Chief Executives’ Office who will, in the event the consent is given, register and issue a consent number.
5.6. Radio Maxx has the right to remove an Advertisement, (Airtime or other Advertising Space or Advertising or Promotional Property) immediately if it is deemed that the Advertisement is unsuitable for broadcast or is unsuitable for Radio Maxx's broadcasting standards. Further, it will be removed if ordered by OFCOM, ASA, or any other regulatory body or by an order of the court. In this event, Radio Maxx will play a generic advert which will consist of business name, address, telephone number, and any relevant details which Radio Maxx has available so that compliance of the Airtime or other Advertising Space or Advertising Property Agreement continues.
Radio Maxx contracts with media advertising agencies and media buying agencies in their own right and not as agents of their Clients.
Notwithstanding the acceptance of any payment (in part or in whole) under this agreement, or the fact that any advertising material has been broadcast previously (in part or in whole), Radio Maxx shall in its absolute discretion, be entitled without notice to do all or any of the following:
7.1. Refuse to accept any advertising material that is in its opinion not consistent with the guidelines or the technical, linguistic, or quality standards determined by Radio Maxx, and
7.2. Refuse to commence broadcasting the advertising material; and,
7.3. Refuse to continue broadcasting the advertising material; and,
7.4. Cancel, reschedule, or replace any advertising material, program or adverting or promotional property; and,
7.5. Advance or delay the date and times of broadcasting any advertising provided Radio Maxx shall notify the Client of such advance or delay in date and times within 7 days from the alteration of the first originally scheduled date and time; and,
7.7. Interrupt the broadcasting of advertising material for a specified period and a specified purpose; and,
Change the rates, terms, and conditions for any advertising at any time; and,
In the event of any of the above, Radio Maxx shall be under no liability whatsoever to the Client for so doing, and any monies paid as an advance in respect of broadcasts not made, and not rescheduled, may be refunded to the Client.
8. COMMERCIAL PRODUCTION and ALL OTHER PRODUCTION and SCHEDULING:
8.1. Commercial Production is separate from the Airtime or other Advertising Space or Advertising Property or Promotional Property Contract and is chargeable depending on the type of advertisement required.
8.2. The Client has the option to use Radio Maxx's production facilities or to produce their own Commercial from a third-party source as the Client may wish. If the Client produces its own commercial, the Commercial Production as defined in clause 8.1 above, then some definitions in clause 4 will not apply.
8.3. At the request of the Client, Radio Maxx can suggest companies who can provide production facilities, but take no responsibility or liability for the quality of the material produced.
8.4. If the Client provides their own commercial, a £70+VAT charge is made to upload the advertisement, review, and ensure it complies with Radio Maxx broadcasting rules & standards as well as OFCOM, ASA rules, and regulations. In addition to this Radio Maxx's Terms and Conditions will apply simultaneously.
8.5. As the Commercial Production is completely separate to that of the Airtime or other Advertising Space or Advertising Property Contract, the Client should provide the commercial to Radio Maxx 3 days prior to commencement of advertising. If the Client fails to provide a suitable commercial production in time, a generic advert consisting of business name, address, and telephone number will be broadcasted by Radio Maxx until a suitable Commercial is provided by the Client. As a favour and a gesture of goodwill, Radio Maxx will play a generic advert charging £70+VAT to allow the Airtime or other Advertising Space or Advertising Property Contract to commence smoothly as scheduled.
8.6. All material contained within the commercial and the Commercial Production is the responsibility of the Client, Including obtaining, Maintaining, and paying for all necessary licenses and consents for the transmission of any material protected by any Intellectual Property or other rights contained in the commercial. In the event of a claim by a third-party, the Client will keep Radio Maxx indemnified for all costs.
8.7. The Client warrants that any advertising material submitted for broadcasting
8.7.1. Contains no false or unwarranted claims regarding any product or service; and,
8.7.2. Contains no incorrect, misleading, or defamatory statements or material; and,
8.7.3. Does not infringe the copyright or other rights of any other person; and,
8.7.4. Does not infringe any legislative requirements (In particular OFCOM, ASA, Privacy Act requirements).
8.8. The Client shall not sub-let, assign or transfer any of his/her/its rights and responsibilities arising under this agreement; and Radio Maxx shall not be required to broadcast any advertisement other than that which has been specified in this agreement.
8.9. Radio Maxx shall have the right to determine placement time-wise, for the advertising material. Radio Maxx will endeavour to see that there is no proximity of competing products or services but shall be under no obligation to do so.
8.10. Should the Client provide its own “Direct to Air” or graphic or other advertising or promotional material, the acceptance of such material shall be at the discretion of Radio Maxx who shall not be liable for loss or damage for any such material while in the possession of Radio Maxx.
8.11. Advertising material must be in the hands of Radio Maxx by the following dates:
8.11.1. If the complete “Direct to Air” material is to be supplied; 3 working days before the scheduled date of broadcast.
8.11.2. if only part of the “Direct to Air” material is supplied; 5 working days before the scheduled date of broadcast.
8.12. Radio Maxx reserves the right to repeat the material already on hand if the scheduled replacement is not delivered prior to the deadline or to charge in full for any advertising not broadcast because of the late receipt of the material.
8.13. Radio Maxx reserves all rights (intellectual) and trademarks over Commercial Production on the script, tempo, style, and voice-overs. The commercial produced by Radio Maxx remains the property of Radio Maxx and is only licensed for use on the Radio Maxx network. It cannot be used or copied under any circumstances for use on other broadcasting mediums.
8.14. However, should the Client wish to purchase the license which will allow the Client to use the commercial on other media a charge of £475.00 plus VAT per month will be payable to Radio Maxx.
8.15. Where the Client continues to use the commercial without an appropriate license on other media the Client will compensate Radio Maxx and keep Radio Maxx indemnified for all costs.
8.16. Radio Maxx will not be responsible for maintaining archives of any advertising material for more than one year after the first date of the broadcast.
9.1. If the Client gives notice to cancel the Contract within the first 28 days of signing the Agreement, Radio Maxx will charge the Client a settlement fee as a gesture of goodwill at 50% of the outstanding Airtime or other Advertising Space or Advertising Property Purchase Costs for unused Airtime or other Advertising Space or Advertising Property as most of the scheduling work is carried out prior to the Scheduled Advertisement Date. Once Radio Maxx receives the notice from the Client to cancel the contract Radio Maxx will provide the Client with a settlement statement within 7 to 10 working days of receiving the notice. The Client must pay this in full within 10 to 14 days, failing which; the whole outstanding Airtime or other Advertising Space or Advertising Property Purchase Costs, which is due and payable regardless whether Airtime or other Advertising Space or Advertising Property has been used or not.
9.2. Notices for cancellation must be in writing either by email to firstname.lastname@example.org or by registered post to Chief Executive Office of Radio Maxx, Office 575, 321-323 High Road, Chadwell Heath, Essex, England, RM6 6AX, quoting the Contract number and business details along with reasons for cancellation. If for any reason Radio Maxx needs to cancel the contract Radio Maxx will notify the Client of the same via email and/or by registered post to the address given by the Client in this Agreement.
9.3. After 28 days of signing this Agreement the Contract cannot be cancelled under any circumstances.
9.4. If an advertising booking is made in connection with a particular broadcasting program and that particular program is cancelled, the Client may have the booking rescheduled to a mutually acceptable time or cancel the booking without charge.
9.5. Where cancelations of advertising bookings are made within 30 days of the first day scheduled for the broadcast of the advertisement, or production of an advertisement is cancelled within 24 hours of a Radio Maxx planned recording session, Radio Maxx will be entitled to payment in full for the advertising production, as if it had been broadcast or produced in accordance with the original booking.
9.6. If Radio Maxx is prevented or delayed from advertising in accordance with this agreement, by reason of circumstances beyond its control (including but not limited to any accident, mechanical or electrical breakdown, power failure, fire, weather conditions, failure of artist to appear, strikes, injunction, and riot), then Radio Maxx shall be under no liability to the Client whatsoever, but where practicable in the opinion of Radio Maxx it shall use its best endeavours to take the following actions:
9.6.1. To broadcast such advertising material at another time or times; or,
9.6.2. To refund any monies paid in advance in respect of such advertising and cancel the agreement in respect thereof.
9.7. The Client indemnifies Radio Maxx against any costs, expenses, and damages which Radio Maxx may incur arising out of any program provided by the Client or the agency of the Client.
9.8. Radio Maxx shall not be liable to the Client or any third party for any breach of the terms of this agreement or for any matter arising from the broadcast of any advertisement or program (in particular but not limited to consequential damages). Notwithstanding this provision, if for any reason Radio Maxx is found to be liable to any party, the quantum of any payment Radio Maxx is liable to make, shall be limited to the amount paid by the Client to Radio Maxx under this contract.
9.9. All causes of action arising prior to cancellation or termination of this contract from any cause shall survive such cancelation or termination.
10.1. All advertising bookings must be paid in full in cleared funds before the first date of the broadcast unless credit terms have been previously agreed with Radio Maxx. Radio Maxx retains the right to refuse to extend credit to any Client.
10.2. If the Client is experiencing short term cash flow problems, it must inform Radio Maxx in writing immediately upon recognizing this problem Radio Maxx will try to help the Client during this period. The Client must put any concerns in writing either by email to email@example.com or by registered post to Chief Executive Office of Radio Maxx, Office 575, 321-323 High Road, Chadwell Heath, Essex, England, RM6 6AX.
10.3. All Airtime or other Advertising Space or Advertising Property Contracts must be accompanied with a payment i.e., PayPal, Credit or Debit Card, Standing Order, Bank transfer, Cheque.
10.4. Credit is only available to approved credit account holders or government agencies with a valid purchase order. An application can be made to open an account with Radio Maxx Credit Application forms for opening an Account with Radio Maxx is available on request. Or alternatively, call the sales office on +44 333 090 4947. If the Client is an approved credit account holder, we will issue proforma invoices. VAT invoice will be issued once a proforma invoice is paid in full.
10.5. When Radio Maxx receives payment, the money is always allocated to the oldest outstanding invoice on the Client account.
10.6. The existence of a query on any item in an invoice or proforma shall not affect the date on which the payment is due. Payment should be made and forthcoming.
10.7. If any amount outstanding on a proforma invoice or VAT invoice is not paid in full by the date the payment is due, interest will be payable on the outstanding amount at a rate of 2% per month accumulated.
10.8. The Client must notify Radio Maxx of any query within the first 10 days of the date of Invoice or proforma.
10.9. Invoices or proforma may not be queried after this time. All queries in relation to payment must be in writing either by email to firstname.lastname@example.org or by registered post to Chief Executive Office of Radio Maxx, Office 575, 321-323 High Road, Chadwell Heath, Essex, England, RM6 6AX. All queries received will be resolved by Radio Maxx within 48/72 hours of notification.
10.10. When the Client fails to abide by the agreed schedule of payments and where packages are not completed the Client shall become liable for the Airtime or other Advertising Space or Advertising Property broadcast at the normal rate prior to any discount package offers. Combined packages will be charged at the normal rates prior to any discount Special offers. The entire amount outstanding shall become due for payment immediately.
10.11. Radio Maxx will levy a charge on the Client for any dishonoured payments such as returned cheques, failed standing orders, etc. at a rate of £45 + VAT per refused payment plus any other administrative costs Radio Maxx may incur as a result of the dishonoured payment.
10.12. If payment is not received by the due date Radio Maxx reserves the right to charge an additional fee of £20 + VAT for any reminder that Radio Maxx may issue whether in writing or by phone.
10.13. If for any reason, the Client has not paid within the credit facility period and the outstanding proforma or invoice is overdue by 7/14 days the Client's account and details may be passed on to Radio Maxx's credit control or an external collection agency and the Clients local sales representative will no longer have any further control of the account. At this point, the Advertisement will be put on hold and will only resume once payment has been received in full. Whilst the Advertisement is on hold, the Client will be charged at the normal rates prior to any discount special offers. The entire amount outstanding shall become due for payment immediately.
10.14. If payment remains outstanding for 14 days after the date on which the invoice was issued Radio Maxx reserves the right to visit the Client's premises or authorize outside agencies and collect any outstanding monies. If such a visit is necessary to recover any outstanding fees an additional charge of £250 + VAT will be payable by the Client. Radio Maxx does not accept payment other than PayPal, bank transfer, debit or credit card, or cheque. If the Client wishes to pay in cash it must attend the offices of Radio Maxx where a receipt upon payment will be given.
10.15. Payment made by credit card or PayPal will incur a surcharged of 2.5% on the amount collected.
In the event of litigation, the Client will be responsible for the administrative costs, legal fees and interest if the court finds in favour of Radio Maxx.
10.16. If credit is extended to the Client then payment is due to be paid by the Client on the 20th of the month following all broadcasts in the preceding month. Client shall have no right of set-off and shall not be entitled to make any deduction from any sum due from the Client to Radio Maxx, however arising. All interest costs and other expenses incurred by Radio Maxx in relation to the collection of overdue accounts will be added to the Client's account.
11. NO PARTNERSHIP:
This Agreement shall not create any partnership or joint venture between the parties to this Agreement and neither party shall be entitled to represent or hold itself out in any way as acting on the other's behalf.
12. FORCE MAJEURE:
12.1. Radio Maxx shall have no liability to the Client if it is prevented, hindered, or delayed in carrying out any of its obligations under the Agreement by any law or regulatory order, rule or regulation or by any other act of nature or any other thing beyond Radio Maxx’s control (including but not limited to strike, lock-out, malicious damage, breakdown of plant, software or machinery, accident, fire or flood or death of royalty, politician).
12.2. Radio Maxx may (without any right of the Client to bring a claim against Radio Maxx) extend the time period for performance of the Agreement to take account of such force majeure or terminate the Agreement with immediate effect by written notice. If the force majeure continues for more than one month, Radio Maxx may terminate the Agreement with immediate effect by written notice. For the avoidance of doubt, any such termination shall be without prejudice to Radio Maxx’s right to be paid any accrued amounts as at the date of termination.
13.1. Standard VAT will be charged at the prevailing rate at the tax point.
13.2. Rates quoted are exclusive of all taxes and VAT.
The Agency shall treat as strictly confidential all information by or disclosed to the other in relation to this Agreement, the commercial and/or the other party and shall not disclose or make public to any party other than to their professional advisers or as may be required by law or as may be agreed between the parties the whole or any part of such information and shall not make use of any such information in any way which might be detrimental to the business interests or business of the other party.
15. ENTIRE AGREEMENT:
15.1. Agreement Variation: This Agreement contains the entire understanding between the parties in relation to the subject matter of it and may not be varied except by agreement in writing between the parties.
15.2. Agreement Superseding: This Agreement represents the entire terms agreed between the parties In relation to its subject matter and supersedes all previous contracts or arrangements of any kind between the parties relating to its subject matter.
16. RIGHTS OF THIRD PARTIES:
A person who is not a party to this Agreement may not rely upon or enforce any rights pursuant to the Contracts (Rights of Third Parties) Act 1999.
17. GOVERNING LAW:
This Agreement shall be governed and construed in accordance with the laws of England & Wales and the courts of London, shall have sole and exclusive jurisdiction over any and all disputes arising hereunder.
In witness whereof the parties here, to have opportunity to read this Agreement and in this respect, they have set and subscribed the irrespective hands to these present on the day, month and year first herein above written.