1.1 In these Conditions the following words have the following meanings:-
1.1.1 “Publisher” means Motor Sport Magazine Limited
1.1.2 “Advertiser” means the person firm or company booking the advertising space and shall include both Advertising Agents and Independent Media Buyers who shall for the purposes of these Conditions be the principal so that there shall be no contract between the client of the Advertising Agents or Independent Media Buyers and the Publisher
1.1.3 “Rate Card” means the Publisher’s current charges for advertisements
1.1.4 “Advertisement” includes loose and bound inserts
1.1.5 “Contract” means a legally binding booking accepted by the Publisher
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Advertiser purports to apply under any purchase order, confirmation of order, specification or other document)2.2 No terms or conditions endorsed upon, delivered with or contained in the Advertiser’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Publisher’s advertisements and any variation to these Conditions and any representations about the Advertisements shall have no effect unless expressly agreed in writing and signed by a Director of the Publisher.
2.4 Each order for Advertisements by the Advertiser from the Publisher shall be deemed to be an offer by the Advertiser to purchase Advertisements subject to these Conditions and all orders are accepted subject to acceptance of copy by the Publisher and if it is intended to include in an Advertisement a competition or a special offer of merchandise, other than that normally associated with the advertised product, full details of such competitions or special offers must be submitted by the Advertiser at the time the order is negotiated.
2.5 No order by the Advertiser shall be deemed to be accepted by the Publisher until the Publisher despatches a written acknowledgement of Order to the Advertiser (in accordance with Clause 8.1) or (if earlier) the Publisher inserts the Advertisement
2.6 The Advertiser must ensure that the terms of its order are complete and accurate and the Advertiser warrants that any Advertisement that it submits shall comply with all applicable legislation (including without prejudice to the generality of the foregoing the Trade Descriptions Act 1968) regulations and codes of practice and that any such Advertisement does not infringe either party’s rights and the Advertiser will indemnify the Publisher and printers fully and effectively against any costs claims damages and/or expenses in respect of any claim made arising from or in consequence of the Advertisement or its publication.
2.7 The Publisher reserves the right in its absolute discretion to amend, withdraw or refuse any Advertisement or part thereof whether or not an order has been accepted and whether or not some advertisements from a run have been published and in particular the Publisher reserves the right in its absolute discretion to cancel any Contract or to omit or suspend an Advertisement for good reason (for example if it is libellous, defamatory, pornographic, socially unacceptable, insensitive or otherwise contrary to editorial policy). Should cancellation, omission or suspension be due to the act or default of the Advertiser or his servants or agents, including the unsuitability of the Advertisement as indicated above, then the Advertiser shall pay for the space reserved for the Advertisement in full, notwithstanding that the Advertisement has not appeared. Such cancellation, omission or suspension shall be notified to the Advertiser as soon as possible.
2.8 Any quotation is given on the basis that no contract will come into existence until the Publisher despatches a written acknowledgement of order to the Advertiser. Any quotation is valid for a period of 30 days only from its date, provided that the Publisher has not previously withdrawn it.
2.9 The Publisher will exercise reasonable care and skill in the handling and publishing of the Advertisement but where the Advertisement is not published in the manner specified in the Contract, whether through any failure or negligent act or omission on the part of the Publisher or any third party, the Publisher’s maximum liability to the Advertiser (including any liability for the acts or omissions of its employees agents and sub-contractors) in respect of any breach of these conditions or any representation statement or tortious act or omission including negligence arising under or in connection with the Contract or the Advertisement shall be limited to the amount of any payment made to the Publisher for the Advertisement concerned: the Publisher shall not otherwise be liable for any direct, indirect, special or consequential loss or damage arising from any failure to publish an Advertisement as agreed with the Advertiser, including, but without limitation, any late or incorrect publication and any non-publication or inaccurate reproduction of the Advertisement, whether caused by the Publisher’s error or negligence or by any reason whatsoever. The Publisher shall not be liable for any error or omission in respect of the publication of the Advertisement which is not notified to the Publisher in writing within one (1) calendar month of the actual publication date of the Advertisement.
3.1 The price for the Advertisement shall be exclusive of any value added tax and also all costs or charges in relation to printing and production (all such costs or charges shall not exceed twenty five per cent (25%) of the cost of the Advertisement) of which amounts the Advertiser will pay to the Advertiser in addition when it is due to pay for the Advertisement.
3.2 In the event of the Advertiser failing to complete or the Publisher cancelling a series booking, the Publisher reserves the right to charge the single insertion rate for each Advertisement published.
4.1 Payment is due 30 days from the date of acceptance of order and time for payment shall be of the essence.
4.2 No payment shall be deemed to have been received until the Publisher has received cleared funds.
4.3 All payments payable to the Publisher under the Contract shall become due immediately upon termination of the Contract despite any other provision.
4.4 The Advertiser shall make all payments due under the Contract without any deduction whether by way of setoff, counterclaim, discount, abatement or otherwise unless the Advertiser has a valid court order requiring an amount equal to such deduction to be paid by the Publisher to the Advertiser.
4.5 If the Advertiser fails to pay the Publisher any sum due pursuant to the Contract the Advertiser will be liable to pay full Rate Card price and interest on full Rate Card price to the Publisher on such sum from the due date for payment, the annual rate of interest to be 4% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis until payment is made whether before or after any judgment.
5.1 The Publisher will not be liable for any loss occasioned by the failure of an Advertisement to appear for any cause whatsoever nor the loss of circulation or ineffectiveness of any issue.
5.2 Notwithstanding Clause 2.9 the Publisher does not accept liability for printing errors, including variations in colour reproduction, variations in print runs and circulation and such errors shall not be deemed cause for the Advertiser to withhold payment.
5.3 Every effort will be made to meet the expressed wishes of Advertisers regarding specified position in the relevant issue, but no guarantee can be given.
5.4 The Publisher cannot guarantee to supply proofs of advertisements not received by the due copy date.
5.5 Proofs not returned to the Publisher by the date specified will be taken to be correct.
5.6 The Advertiser will be charged for any supplementary process costs incurred on or for colour advertisements and for any other out of the ordinary costs including printing and insertion costs that may reasonably have been incurred by the Publisher on its behalf.
5.7 If Advertisements are not supplied in time for Press or not in a suitable condition for inclusion, the Advertiser will be liable to pay for the Advertisement in full as if the Advertisement had appeared.
5.8 Notice of cancellation of an Advertisement by an Advertiser must be received in accordance with Clause 8.1 at least six (6) weeks prior to the relevant publication date failing which the Advertiser shall be liable for the full price of the Advertisement.
5.9 Failure to sign or return the written acknowledgement of order to the Publisher does not constitute cancellation of an advertisement booking.
5.10 Advertisement material is held at the Owner’s risk and should be insured against loss or damage.
6. The Publisher reserves the right to defer the date of delivery or to cancel the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Publisher including without limitation acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that if the event in question continues for a continuous period in excess of 30 days the Advertiser shall be entitled to give notice in writing to the Publisher to terminate the Contract.
7.1 Each right or remedy of the Publisher under the Contract is without prejudice to any other right or remedy of the Publisher whether under the Contract or not. 7.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
7.3 Failure or delay by the Publisher in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract
7.4 Any waiver by the Publisher of any breach of, or any default under, any provision of the Contract by the Advertiser will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
7.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
8.1 All communications between the parties about the Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission or via email:
8.1.1 (in the case of communications to the Publisher) to its publishing office and email addresses as shall be notified to the Advertiser by the Publisher; or
8.1.2 (in the case of the communications to the Advertiser) to any postal and email address of the Advertiser set out in any document which forms part of the Contract or such other address as shall be notified to the Publisher by the Advertiser.
8.2 Communications shall be deemed to have been received:
8.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
8.2.2 if delivered by hand, on the day of delivery;
8.2.3 if sent by facsimile transmission on a working day prior to 4.00 p.m. at the time of transmission and otherwise on the next working day.
8.2.4 if sent by email on a working day prior to 4.00 p.m. at the time of transmission and otherwise on the next working day.
8.3 Communications addressed to the Publisher shall be marked for the attention of the Advertisement Manager.