Radio Advertising Terms and Conditions
These terms and conditions (“Conditions”) set out the terms on which Radio Diamond
has agreed to deliver, and (if applicable) create material for, the Advertiser’s advertising
Campaign which is detailed in the Order Confirmation (all as defined below).
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- INTERPRETATION
In these terms:
1.1. ‘Advertisement’ means a Digital Advertisement, Radio Advertisement and/or
Audio-Visual Advertisement which collectively form the Campaign.
1.2. ‘Advertiser’ means the person, corporation or firm which signs or otherwise
confirms the Order Confirmation.
1.3. ‘Advertising Regulation’ means the British Code of Advertising, Sales Promotion and
Direct Marketing, the BCAP Code, CAP Code, all Radio Centre guidelines, all relevant
codes under the general supervision of the Advertising Standards Authority and all
other relevant laws, regulations and codes of practice which are directly applicable to
the Campaign and for the time being in force in the United Kingdom.
1.4. ‘Agreement’ means the agreement between the Advertiser and Radio Diamond for
the delivery of and, if applicable, creation of material for, the Advertiser’s Campaign in
accordance with these terms and conditions together with the Order Confirmation.
1.5. ‘Assets’ means all text, audio, graphics, digital files, photographs, film and
accompanying product, brand or other information, provided by the Advertiser or any
person acting on its behalf, which is used for or incorporated into an Advertisement.
1.6. ‘Audio-Visual Advertisement’ means any audio-visual material created and/or
delivered pursuant to this Agreement for advertising, promotion, sponsorship or similar
purposes and which is either: (i) intended for display on any website owned, operated
or controlled by Radio Diamond; and/or (ii) intended for communication on certain
third party owned platforms, in accordance with the Licence.
1.7. ’Radio Diamond’ means Radio Diamond Afrika Project (Company No. 11267599 )
whose registered office is at132 Claremont Road, Moss Side, Manchester, Greater
Manchester, M14 4RT
1.8. ‘Radio Diamond Material’ means any material, whether in print, digital, audio-only,
audio-visual or any other form, which belonged to Radio Diamond prior to the date of
this Agreement and / or which is otherwise developed and delivered by Radio Diamond
for the Campaign;
1.9. ‘Campaign’ means the promotional campaign detailed in the Order Confirmation
consisting of a series of Advertisements.
1.10. ‘Campaign Start Date’ means the start date of the Campaign as detailed in the
Order Confirmation.
1.11. ‘Digital Advertisement’ means any digital display advertising, promotional,
sponsorship, or similar material (including banners and home page takeovers)
delivered on any website (including all desk-top and mobile optimised sites), mobile
application or social media profile which is owned, operated or controlled by B Radio, as
specified in the Order Confirmation.
1.12. ‘Impacts’ shall have the meaning given in clause 4.5;
1.13. ‘Intellectual Property Rights’ means any and all patents, service marks, designs,
utility models, trade marks, business or trade names, copyright, design rights, know-
how and all other intellectual property rights, in each case whether registered or
unregistered and including all applications and rights to apply for and be granted,
renewals or extensions of, and rights to claim priority from, such rights and all similar
or equivalent rights or forms of protection which subsist or will subsist now or in the
future in any part of the world;
1.14. ‘Laydown’ shall have the meaning given in clause 4.5;
1.15. ‘Licence’ shall have the meaning given in clause 7.2;
1.16. ‘Order Confirmation’ means the written or electronic sales order or confirmation
document provided by Radio Diamond to the Advertiser confirming details of the
Campaign;
1.17. ‘Radio Advertisement’ means any audio advertising, promotional, sponsorship,
tagline or similar material to be broadcast by B Radio on its radio station(s), as specified
in the Order Confirmation.
1.18. ‘Specialist Advertising Regulations’ where the Advertiser’s business involves any
industry sector which is subject to its own industry specific Advertising Regulations or
other code, regulation, statute or law, then those industry specific Advertising
Regulations.
1.19. ‘Term’ shall have the meaning set out at clause 2. - TERM
2.1 Any action in respect of or written communication (which may be via email) of the
Order Confirmation by the Advertiser constitutes an offer by the Advertiser to purchase
the Campaign and/or any other services referred to in the Order Confirmation, in
accordance with these Conditions.
2.2 The Order Confirmation shall only be deemed to be accepted on the earlier of (i)
Radio Diamond issuing written acceptance of the Order Confirmation; or (ii) Radio
Diamond taking any action to begin fulfilling the Order Confirmation; at which point and
on which date the Agreement shall come into existence.
2.3. These Conditions apply to the Agreement to the exclusion of any other terms that
the Advertiser seeks to impose or incorporate, or which are implied by law, trade
custom, practice or course of dealing.
2.4. This Agreement shall continue until the final Advertisement in the Campaign has
been broadcast on a Radio Diamond station or has been taken down from Radio
Diamond website (whichever is later) (the “Term”). However, all terms which are
expressly stated or are, by their nature, clearly intended to continue, shall continue
beyond expiry or earlier termination of the Term. - THE CAMPAIGN
3.1. Radio Diamond shall broadcast, publish and communicate the Advertisements to
the public in accordance with the Order Confirmation. In addition, if detailed in the
Order Confirmation, Radio Diamond shall develop and create the Advertisements for
the Campaign.
3.2. The parties shall cooperate in good faith to ensure the Campaign is developed and
delivered, subject to clause 4.5 and the remaining terms of this Agreement, in
accordance with the specifications and deadlines set out in the Order Confirmation.
3.3. Radio Diamond shall endeavour to be flexible and to work with the Advertiser to
agree appropriate timeframes for delivery of Assets and / or communicating approvals.
Approval and delivery deadlines shall be agreed between Radio Diamond and the
Advertiser and recorded, in writing, email being sufficient for such purposes. In the
absence of such agreement, the following “Deadlines” shall apply:
3.3.1. if the Assets comprise the complete Advertisement, the Advertiser shall deliver to
Radio Diamond all Assets (in the format and style agreed in advance, together with all
consignment notes, rotation details and all other necessary approvals and clearances,
including any necessary clearances from Radio centre) at least 3 days before the
Campaign Start Date;
3.3.2. if Radio Diamond is responsible for the development and creation of
Advertisements: a) Radio Diamond and the Advertiser shall determine the concept and
relevant details of each Advertisement prior to the Campaign Start Date; b) the
Advertiser shall then deliver to Radio Diamond all Assets necessary for development of
the Advertisement (in the format and style agreed in advance) at least 14 days before
the Campaign Start Date; c) if Radio Diamond requires the Advertiser to amend any
Assets, the Advertiser shall provide such amended Assets within 7 days or such other
reduced timeframe to ensure that the amended Assets are received 3 days before the
Campaign Start Date;
3.3.3 if Radio Diamond is responsible for the development and creation of
Advertisements: Radio Diamond shall consult with the Advertiser at all material stages
of the development process and shall submit a draft Advertisement to the Advertiser for
final approval (such approval not to be unreasonably withheld or delayed) prior to the
Campaign Start Date. The Advertiser must communicate its approval of (or, if it does not
approve, its comments on) the draft Advertisement as soon as possible, and within no
more than 7 days of receiving the draft Advertisement from Radio Diamond (or such
other reduced timeframe to ensure that the approval is received 3 days before the
Campaign Start Date), failure to do so (non-communication) shall be deemed acceptance
of the draft Advertisement. If the Advertiser does not approve of the draft
Advertisement, it shall provide Radio Diamond with written details (in accordance with
the aforementioned timeframe) of the changes required and, provided such changes are
not materially different from the detail set out in the Order Confirmation, Radio
Diamond shall use its reasonable commercial endeavours (subject to restrictions
imposed by applicable laws, statutes, regulations and codes from time to time in force)
to incorporate such changes prior to, and in time for delivery on, the Campaign Start
Date. The Advertiser’s delay or failure in communicating its required changes to the
draft Advertisement shall be deemed acceptance of the draft Advertisement, which
Radio Diamond shall then deliver in accordance with this Agreement.
3.4 The Advertiser’s failure to comply with the agreed deadlines and/or of Radio
Diamond requirements for the submitted Assets to be significantly amended, may result
in a delay or failure to develop and/or deliver the agreed Campaign, and Radio Diamond
shall not be liable for any costs or losses sustained or incurred by the Advertiser arising
directly or indirectly from the Radio Diomond’s failure or delay to perform any of its
obligations as set out in this clause 3.4. - PARTIES’ OBLIGATIONS
4.1.Radio Diamond represents and warrants that: a) it is entitled to enter into this
Agreement and to perform the obligations set out in it; b) in the fulfilment of its
obligations under this Agreement, it shall comply with all applicable laws, including
those relating to anti-bribery, anti-corruption and anti-money laundering; and c) it shall
perform its obligations under this Agreement in accordance with reasonably accepted
industry practice.
4.2. The Advertiser represents, warrants and undertakes that: a) it is entitled to enter
into this Agreement and to grant the rights and perform the obligations as specified in
this Agreement; b) it will give Radio Diamond written notice of any change of its name,
trading style, identity or trading premises immediately (and no more than 5 days from
the date of such change); c) unless otherwise set out in the Order Confirmation, it has
obtained or will obtain all necessary clearances in relation to each Advertisement,
including all necessary clearances from Radio centre, (and shall pay all costs, royalties
and expenses related to the same) necessary for B Radio’s exploitation of the Assets for
the purposes of the Campaign; d) Radio Diamond’s use of the Assets will not violate or
infringe any third party Intellectual Property Rights; e) all information supplied by the
Advertiser, or on its behalf, to Radio Diamond for use in connection with an
Advertisement (including that which is contained within Assets) is accurate, complete
and true; f) in respect of any Assets which contain the name, voice or other contribution
from a living person, the Advertiser has obtained the consent of such living person to
make use of their name or voice or contribution for the purposes of the Advertisement
and/or Campaign (as relevant); g) in relation to any financial promotion (as defined
under the Financial Services and Markets Act 2000), the Advertiser is, or the
Advertisement as a whole has been approved by, an authorised person within the
meaning of that Act or the Advertisement is otherwise permitted by all applicable laws;
h) the Assets and Radio Diamond’s use of them in accordance with this Agreement
complies with the Advertising Regulations and all applicable laws, statutes, regulations
and codes from time to time in force and will not constitute a libel or slander, nor be
offensive, indecent, nor, if published or broadcast, would promote discrimination based
on sex, race, religion, disability or age; i) the Assets do not contain viruses, bugs,
worms, Trojan horses, harmful codes or other form of defect or contamination which
could cause temporary or permanent damage to or will otherwise impair or harm or
cause the malfunction of the software or hardware of any platforms on which Digital
Advertisements will be delivered pursuant to this Agreement; j) it will not knowingly
do or say anything which is intended or is reasonably likely to cause harm to Radio
Diamond’s reputation or to otherwise bring Radio Diamond or any of Radio Diamond’s
media platforms or brands into disrepute; and k) in connection with this Agreement, it
shall comply with all applicable laws including those relating to anti-bribery, anti-
corruption and anti-money laundering.
4.3. Radio Diamond may, in its sole (but reasonable) discretion and without liability to
the Advertiser, refuse to broadcast or publish an Advertisement or any Assets, or if
broadcast or publication has already commenced it may refuse a future broadcast or
publication (and for Digital Advertisements or Audio-Visual Advertisements, remove
from a Radio Diamond website immediately), or require the Advertisement or Assets to
be amended prior to any future broadcast or publication, to: a) comply with any legal or
moral obligations placed on Radio Diamond or the Advertiser; b) avoid, or attempt to
avoid, infringing a third party’s Intellectual Property Rights, Advertising Regulations or
applicable laws, statutes, regulations and codes from time to time in force; c) to avoid /
remedy the potential risk of bringing Radio Diamond into disrepute or harming its
reputation; or d) to avoid the breach of Radio Diamond’s internal policies or brand
guidelines.
4.4. Radio Diamond reserves the right (during the Term and for the purposes of the
Campaign) to broadcast or publish (whether on one of its websites or on one of its radio
stations) any Assets previously supplied by the Advertiser.
4.5. Radio Diomond will use reasonable efforts to comply with the wishes of the
Advertiser and to deliver the agreed number of adults aged fifteen or over, “Impacts”
(the gross number of opportunities to hear (“OTH”) radio advertising, calculated by
multiplying the total reach of the Radio Advertisements by the average OTH according
to RAJAR data, it represents the total number of times each Radio Advertisement is
likely to have been heard) for the Radio Advertisement. Radio Diamond will also
endeavour to accommodate requested “Laydowns” (meaning the agreed broadcast
schedule or number of spots) but reserves the right to change radio programming
features and broadcast times. If Radio Diamond is unable to accommodate the agreed
Laydowns, it shall reconcile this against the agreed Impacts. Radio Diamond will not
reimburse the Advertiser for the number of spots missed according to the Laydown. - CANCELLATION
5.1. Radio Diamond will not be bound by a request to cancel a Campaign or any part
thereof unless it receives written notification, by recorded delivery at least 28 days
prior to the Campaign Start Date. If a cancellation notice is received prior to this
deadline, the Advertiser will be liable to pay all charges for services Radio Diamond has
undertaken prior to receipt of the cancellation notice, together with any third party
charges or other expenses or costs incurred by Radio Diamond or to which Radio
Diamond is committed as well as any charges or other expenses or costs imposed on
Radio Diamond by third parties arising from the cancellation, which shall be invoiced to
the Advertiser following Radio Diamond’s receipt of the cancellation notice and such
invoice shall be immediately payable by the Advertiser. Cancellation notices received
less than 28 days before the Campaign Start Date, regardless of when the Campaign was
booked, shall not (even if followed by Radio Diamond) affect the Advertiser’s liability to
pay all charges for the Campaign in accordance with clause 6, below, including any third
party charges or other expenses or costs incurred by Radio Diamond or to which Radio
Diamond is committed as well as any charges or other expenses or costs imposed on
Radio Diamond by third parties arising from the cancellation.
5.2. Radio Diamond reserves its right to withdraw, or adjust at its discretion, any
discount given to the Advertiser for a Campaign if it is not completed because it is
cancelled pursuant to clause 5.1, above. - CHARGES AND PAYMENT
6.1. The media, production and all other charges payable to Radio Diamond for the
Campaign and any other services provided to the Advertiser pursuant to the Order
Confirmation shall be as specified in the Order Confirmation.
6.2 Unless otherwise agreed in writing, the Advertiser shall be invoiced on
commencement of this Agreement and such invoice(s) and all charges will be due and
payable, in full and cleared funds, before the Campaign Start Date.
6.3. Payment must be made to Radio Diamond by BACS, credit/debit card or other
electronic transfer to Radio Diamond’s bank account, as detailed on its invoice.
6.4. All charges stated in the Order Confirmation are exclusive of Value Added Tax
which shall be payable in addition and at the rate from time to time in force (if
applicable).
6.5. For the purposes of this Agreement, time of payment shall be of the essence.
6.6 Without prejudice to Radio Diamond’s other rights and remedies, Radio Diamond
shall be entitled to: a) charge interest on any outstanding payments at the rate of 2%
per annum from and including the date that payment fell due until and including the
date of actual payment, both before and after judgment; and/or c) instruct a debt
collection agency to recover any sum due and all charges incurred by Radio Diamond as
a result of such instruction shall be payable by the Advertiser;
6.7 All amounts due under the Agreement shall be paid in full without any set-off,
counterclaim, deduction or withholding (other than any deduction or withholding of tax
as required by law). - INTELLECTUAL PROPERTY RIGHTS
7.1. All Intellectual Property Rights in and to the Radio Diamond Material shall at all
times remain vested in Radio Diamond and nothing in this Agreement shall be
construed as an assignment by Radio Diamond of such Intellectual Property Rights to
the Advertiser and all goodwill arising in or generated by the use of such Intellectual
Property Rights will accrue to and inure to the benefit of Radio Diamond. Apart from as
set out in clause 7.2, below, the Advertiser must obtain Radio Diamond’s written
consent to use any Radio Diamond Material during or after the Term and Radio
Diamond reserves the right to charge the Advertiser for any such use.
7.2. Notwithstanding clause 7.1, above, from time to time, Radio Diamond shall grant to
the Advertiser, a licence to reproduce the Radio Diamond Material, specifically as it
appears within the Advertisement, for public communication and / or internal use, by
the Advertiser or on its behalf. The terms of this licence will be detailed in a separate
“Licence” signed by the parties on or about the date of this Agreement. The Advertiser
accepts that Radio Diamond’s ability to grant such a licence is subject always to any
restrictions imposed by third parties whose contributions are featured in the Radio
Diamond’s Material. The Advertiser’s licence (if any) in respect of the Radio Diamond’s
Material is conditional on the Advertiser:
7.2.1. signing and complying with the terms of the Licence, including but not limited to
the licence period and the approved platforms detailed therein; 7.2.2. not altering or
changing the Radio Diamond; 7.2.3. agreeing that it will not apply for (either itself or in
conjunction with any third party) nor authorise any third party to apply for (or
otherwise secure) any protection in respect of the Radio Diamond Material, all such
rights are reserved to Radio Diamond; 7.2.4. agreeing to take such steps as may be
reasonably necessary to protect Radio Diamond’s rights in and to the Radio Diamond’s
Material, including providing reasonable assistance to Radio Diamond in relation to any
claims or actions it brings or is required to defend (Radio Diamond reserves all right
and powers required to enforce rights in and to the Radio Diamond Material); 7.2.5.
agreeing that it will not at any time now or in the future dispute or challenge Radio
Diamond’s ownership of any of the Intellectual Property Rights related to the Radio
Diamond Material; 7.2.6. not using the Radio Diamond Material in any way which is
intended or reasonably likely to be harmful to Radio Diamond’s reputation; 7.2.7.
ensuring that its use of the Radio Diamond Material complies with applicable laws,
statutes, regulations and codes from time to time in force and/or Radio Diamond’s
reasonable instructions (such as take down requests and adjacency guidelines) as may
be communicated from time to time; and 7.2.8. ensuring that Radio Diamond is credited
(in a manner agreeable to Radio Diamond) whenever the Radio Diamond Material
Diamond is reproduced and/or publicly communicated for example “in association with
Radio” or such other agreed credit; 7.2.9. the Advertiser’s compliance with the licensing
arrangements pertaining to music and other third party content included within the
Radio Diamond Material any additional usage which shall be agreed between the
Advertiser and the relevant rights holders; 7.2.10. indemnifying Radio Diamond and
keeping Radio Diamond fully and effectively indemnified and holding Radio Diamond
harmless from and against any third party claims which arise out of or are associated
with the Advertiser’s actual or purported failure to comply with this clause 7.2 and/or
the terms of the Licence.
7.3. The Advertiser hereby grants Radio Diamond a non-exclusive, royalty-free licence
during the Term to use and reproduce all Intellectual Property Rights in and to the
Assets for creation and delivery of the Campaign pursuant to this Agreement and/or for
any other purpose in connection with the fulfilment of Radio Diamond’s obligations
under this Agreement.
7.4. All Intellectual Property Rights in and relating to the Assets shall at all times remain
vested in the Advertiser and nothing in this Agreement shall be construed as an
assignment by the Advertiser of any such Intellectual Property rights and all goodwill
and rights arising in or generated by the use of such Intellectual Property Rights
pursuant to this Agreement will accrue to and inure to the benefit of the Advertiser.
7.5. At the end of the Term, Radio Diamond shall no longer be entitled to use the
Advertiser’s Intellectual Property Rights, save that the Advertiser hereby grants Radio
Diamond a perpetual and royalty-free licence to use the Assets, as the same may appear
within the Advertisements, for Radio Diamond’s internal business uses and to promote
its advertising services to other potential advertisers. - LIMITATION OF LIABILITY
8.1. This clause 8 sets out the entire liability of one party to the other and, except as
provided in this clause, all other liability is excluded.
8.2. If the Assets comprise the complete Advertisement, it is the responsibility of the
Advertiser to ensure such Advertisement(s) complies with (i) the Advertiser’s
requirements; (ii) all Advertising Regulations; (iii) any Specialist Advertising
Regulations; and (iv) applicable laws, statutes, regulations and codes from time to time
in force.
8.3 If Radio Diamond is responsible for the development and creation of
Advertisements, then (i) Radio Diamond warrants that, to the best of its knowledge and
belief and subject to clause 8.5, as at the date of delivery of the Advertisements, the use
of the Advertisements in accordance with this Agreement for the purposes set out in the
Order Confirmation will comply with all Advertising Regulations in the UK (but
excluding any Specialist Advertising Regulations for which the Client shall be
responsible for ensuring that the Advertisement(s) are compliant with such Specialist
Advertising Regulations); (ii) it is the responsibility of the Advertiser to check, when it
is provided by Radio Diamond for approval, the correctness and factual accuracy of each
draft Advertisement and that such draft Advertisement complies with (a) the
Advertiser’s requirements; (b) applicable laws, statutes, regulations and codes from
time to time in force; and (c) any Specialist Advertising Regulations.
8.4 Radio Diamond will not be responsible for any errors in any Advertisement (or the
repetition of an error in an Advertisement ordered for more than one broadcast or
publication) which has been approved by the Advertiser.
8.5 The Advertiser releases Radio Diamond from any liability under or in connection
with this Agreement and hereby indemnifies Radio Diamond against all losses, damages,
liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses
(including reasonable legal and other professional expenses) incurred by Radio
Diamond which arise as a result of or in connection with: (i) where Assets comprise the
complete Advertisement, the use of such Assets in the Campaign; (ii) where Radio
Diamond is responsible for the development and creation of Advertisements,
incorporation of Assets into the Advertisements; (iii) any use of the Assets in the
Advertisements infringing third party Intellectual Property Rights; (iv) where Assets
comprise the complete Advertisement, the Advertisements breaching Advertising
Regulations, Specialist Advertising Regulations or other laws and regulations;
(v) where Radio Diamond is responsible for the development and creation of
Advertisements, the Advertisements breaching Specialist Advertising Regulations;
and/or (vi) the Advertisements breaching third party Intellectual Property Rights,
Advertising Regulations, Specialist Advertising Regulations or other laws and
regulations where Radio Diamond had previously notified the Advertiser of a specific
risk that the Advertisement(s) infringed third party Intellectual Property Rights or
breached Advertising Regulations, Specialist Advertising Regulations or other laws and
regulations and the Advertiser had approved the use of such Advertisement(s)
notwithstanding such notified risk.
8.6. If, after it has given its approval pursuant to this Agreement, the Advertiser notices
an error in an Advertisement, it should notify Radio Diamond immediately and in
writing (email being sufficient for such purposes). Following such notification, B Radio
shall use reasonable endeavours to promptly remove the Advertisement from its
website or cancel any future radio broadcasts for that Advertisement. If Radio Diamond
fails to do so within a reasonable time or if during the approval process, Radio Diamond
fails to correct an error identified by the Advertiser, then Radio Diamond (at Radio
Diamond’s discretion) shall either:
a) if possible, not charge the Advertiser the media charge for delivery of that
Advertisement; or b) if the media charge has already been paid, re-broadcast / re-
publish a corrected Advertisement, without charge, extending the Campaign term, if
necessary; or c) If the media charge has already been paid and it is not possible for re-
broadcast or to re-publish the Advertisement, credit the Advertiser the media charge
associated with delivery / publication of the Advertisement(s) containing the error,
such credit may then be used in any subsequent advertising or promotional campaign
the Advertiser books with Radio Diamond.
8.7. Any complaint, claim or query (whether in relation to an Advertisement or an
invoice) must be raised with Radio Diamond in writing (email being sufficient for such
purposes) within 14 days of either: a) the broadcast of the Radio Advertisement; b) the
date on which it is claimed the Radio Advertisement should have been broadcast; c) the
date on which the Digital Advertisement or Audio-Visual Advertisement should have
been or has been live on a Radio Diamond website; or d) the date of receipt by the
Advertiser of the invoice giving rise to the complaint, claim or query. The raising of a
complaint, claim or query shall not affect the Advertiser’s liability to pay all charges for
the Campaign.
8.8. Radio Diamond shall not be in breach of the Agreement or liable for delay or failure
to perform any of its obligations hereunder, to the extent that such failure arises from or
is attributable to acts, events, omissions or accidents beyond its reasonable control
including but not limited to any of the following: fires, Acts of God, flood, earthquake,
windstorm or other natural disaster, strikes, interruption or failure of a utility service,
failure of the internet, terrorism, key employees not being available to perform the
services through death, illness or departure, or Governmental restriction. Radio
Diamond shall also not be liable to the Advertiser for the failure, corruption,
interruption, downtime, virus or malfunction of any radio station, website or other
digital platform, including but without limitation any third-party media platform.
8.9. Radio Diamond will not be liable to the Advertiser if the success of the Campaign is
less than anticipated.
8.10. The Advertiser will indemnify Radio Diamond and shall keep Radio Diamond fully
and effectively indemnified and hold Radio Diamond harmless from and against all
claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever
arising out of or in connection with the Advertiser’s breach or non-performance of this
Agreement.
8.11. Nothing in this Agreement limits or excludes the liability of a party which cannot
legally be limited, including but not limited to liability for death or personal injury
resulting from its negligence or for any damage or liability incurred by a party as a
result of fraud or fraudulent misrepresentation by the other party.
8.12. All warranties, conditions and other terms implied by statute or common law are,
to the fullest extent permitted by law, excluded from this Agreement.
8.13. Radio Diamond shall not be liable to the Advertiser for:
(i) loss of profits.
(ii) loss of sales or business.
(iii) loss of or damage to goodwill.
(iv) loss of anticipated savings.
(v) loss of agreements or contracts,
(vi) loss of use, loss or corruption of data or information; or
(vii) any indirect or consequential loss, costs, damages, charges or expenses.
8.14 Radio Diamond’s total liability to the Advertiser in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or otherwise in
respect of all breaches of duty relating to a particular Advertisement shall be limited to
the total media and production charges (calculated on a pro-rata basis) payable by the
Advertiser for the Advertisement in question.
8.15. Radio Diamond’s total liability to the Advertiser in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or otherwise
shall not exceed the total charges paid or payable under this Agreement by the
Advertiser in respect of Campaigns or other services actually supplied by Radio
Diamond. - TERMINATION
9.1. Radio Diamond may terminate this Agreement at any time and without reason by
serving 30 days’ written notice to the Advertiser.
9.2 Without affecting any other right or remedy available to it, Radio Diamond may
terminate the Agreement with immediate effect by giving written notice to the
Advertiser if the Advertiser fails to pay any amount due under the Agreement on the
due date for payment.
9.3. Without prejudice to any rights that have accrued under this Agreement or any of
its rights or remedies, if a party (the “Defaulting Party”):
a) commits a material breach of this Agreement which is not capable of remedy or, if
capable, is not remedied within 15 days of the other party’s written notice giving details
of the breach and requiring its remedy; b) suspends, threatens to suspend, admits
inability or is deemed unable to pay its debts as they fall due within the meaning of s123
of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay
its debts or as having no reasonable prospect of so doing, in either case, within the
meaning of s268 of the Insolvency Act 1986 or (being a partnership) has any partner to
whom any of the foregoing apply; c) commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a proposal for or enters
into any compromise or arrangement with its creditors other than for the sole purpose
of a solvent amalgamation or solvent reconstruction of that party; d) files a petition,
gives a notice, passes a resolution, or makes an order, for or in connection with its
winding up other than for the sole purpose of a solvent amalgamation or solvent
reconstruction; e) receives or issues an order for, or a notice of an intention for, the
appointment of an administrator; f) has a person who becomes entitled to appoint a
receiver over its assets or a receiver is appointed over its assets; g) (if the party is an
individual), is the subject of a bankruptcy petition or order; or h) has a creditor who
attaches or takes possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part of its assets and
such attachment or process is not discharged within 14 days; or i) any event occurs, in
any jurisdiction, that has an effect equivalent or similar to any of the events mentioned
in this clause 9.3; or j) suspends or ceases, or threatens to suspend or cease, to carry on
all or a substantial part of its business; or k) (if the party is an individual) dies or, by
reason of illness or incapacity is incapable of managing his or her own affairs; or l) has a
change of control or ownership; or (m) financial position deteriorates so far as to
reasonably justify the opinion that its ability to give effect to the terms of this agreement
is in jeopardy; or (n) the other party applies to court for, or obtains, a moratorium
under Part A1 of the Insolvency Act 1986; and
9.3.1 if the Defaulting Party is the Advertiser, Radio Diamond shall be entitled (at its
discretion) to suspend the Campaign until the breach is remedied (including for a
breach as referred to in clause 9.2) or to terminate this Agreement, without liability,
immediately by giving written notice to the Advertiser; or 9.3.2 the Defaulting Party is
Radio Diamond, the Advertiser may terminate this Agreement immediately by giving
written notice to Radio Diamond.
9.4 On termination or expiry of the Agreement the Advertiser shall immediately pay to
Radio Diamond all of Radio Diamond’s outstanding unpaid invoices and interest and, in
respect of any Campaign, Advertisement(s) or services supplied but for which no
invoice has been submitted, Radio Diamond shall submit an invoice, which shall be
payable by the Advertiser immediately on receipt.
9.5 Termination or expiry of the Agreement shall not affect any rights, remedies,
obligations or liabilities of the parties that have accrued up to the date of termination or
expiry, including the right to claim damages in respect of any breach of the Agreement
which existed at or before the date of termination or expiry. - SUPPLY OF PRIZES.
10.1. If the Campaign includes a competition or prize promotion (each a “prize
promotion”) promoted by B Radio for which the Advertiser is responsible for supplying
and /or arranging the prize, the Advertiser, accepts that the terms of this clause 10 shall
apply.
10.1.1. Radio Diamond will be notified to prize promotion entrants as the “promoter”
(as such term is defined by the Advertising Standards Authority) but the Advertiser may
be referred to as the provider of the prize whenever the prize promotion is promoted as
part of the Campaign. 10.1.2. The Advertiser warrants that it is entitled to grant Radio
Diamond permission to provide the prize as a prize for the prize promotion. 10.1.3.
Radio Diamond will provide to the Advertiser, for approval at least 7 days before the
prize promotion start date, a copy of the terms and conditions for the prize promotion
(the “Rules”). The Advertiser must respond within 3 days and raise any objections to the
description of the prize in the proposed Rules. Failure to do so shall be interpreted as
the Advertiser’s approval of the Rules and the description of the prize contained therein.
10.1.4. Once the Rules are approved, the Advertiser shall make no changes to the prize
as it is described in the Rules. 10.1.5. Notwithstanding clause 10.1.4, above, if due to
circumstances beyond the Advertiser’s control, the Advertiser will be unable to provide
the prize exactly as it is described in the Rules and/or its delivery will be delayed, it
shall notify Radio Diamond as soon as it becomes aware of this. The Advertiser shall
then be responsible for providing, at its cost, an alternative prize (of equivalent value
and product description) that Radio Diamond, acting reasonably, deems appropriate in
the circumstances. 10.1.6. If the Advertiser is responsible for delivering the prize to the
winner, it shall provide the winner with all information the winner reasonably requires
receiving and use the prize and must deliver the prize or, if delivery is not possible,
contact the winner to make arrangements for delivery, within a week of the prize
promotion end date. The prize should always be delivered to the winner within 28 days
of the date the winner is announced unless there are extenuating circumstances, in
which case, the Advertiser must keep the winner informed as to when they will receive
their prize and the reason for the delay. If applicable, the Advertiser will provide, before
the prize promotion start date, contact details for the person with responsibility for
arranging delivery of the prize(s). These details will be provided to the winner(s) when
Radio Diamond notifies them that they have won. The responsible person will then be
expected to liaise with the winner(s) and must confirm to Radio Diamond, in writing,
when the winner(s) has been contacted about their prize and/or to arrange its delivery
and, again, once delivery has taken place. 10.1.7. The Advertiser is responsible for
ensuring that the prize complies with all applicable laws, statutes, regulations and codes
from time to time in force, health and safety legislation, trading and other industry
standard regulations. 10.1.8. As between the parties, the Advertiser is solely responsible
for the prize and any risks associated with it. Radio Diamond shall not be liable in any
way for the prize or for any costs, damages, or liabilities arising out of or connected with
it and/or the winner(s)’s receipt and use of it. If an entrant or winner complains to
Radio Diamond, about or in connection with the prize the Advertiser must take all
reasonable steps to resolve and/or rectify such complaint. This obligation includes
providing a substitute prize (of equivalent value and product description) if the original
prize is defective or not available.
10.2 The Advertiser shall be liable for, and hereby indemnifies Radio Diamond against
any and all losses, damages, liabilities, claims, demands, actions, penalties, fines, awards,
costs and expenses (including reasonable legal and other professional expenses)
incurred as a result of any such prize referred to in clause 10.1, including any claim by a
third party arising out of the use or enjoyment of such prize. - DATA PROTECTION
11.1. Unless otherwise agreed, no personal data will be transferred to the Advertiser by
Radio Diamond pursuant to this Agreement. The transfer of any personal data by Radio
Diamond to the Advertiser (in connection with this Campaign or otherwise) is subject to
the Advertiser signing and complying with Radio Diamond’s standard data sharing
agreement. Under no circumstances will personal data be transferred to the Advertiser
unless the Advertiser signs such data sharing agreement.
11.2. Each Party warrants that it shall comply with all relevant legislation and
regulation always governing the processing and transfer of personally identifiable data.
Radio Diamond shall be the data controller of such personal data. - CONFIDENTIAL INFORMATION
The terms of this Agreement (but not its existence), and any other information notified
by one party to the other as being confidential, shall be kept strictly confidential at all
times, unless required by law, order of a court of competent jurisdiction, in which event
the disclosing party shall notify the other party as promptly as possible (and, if at all
possible, prior to the making of any such disclosure) and shall use its reasonable
commercial endeavours to ensure that such information continues to be treated as
confidential. Notwithstanding the foregoing, the parties shall be entitled to disclose any
such confidential information on a “need-to-know” basis under the same obligations of
confidentiality as in this Agreement, to its professional advisors, employees, officers,
contractors, agents and affiliated companies. - SPONSORSHIP AGREEMENTS
13.1. If part of the Campaign is for sponsorship of a radio programme or feature, Radio
Diamond reserves the right to cancel or suspend this element of the Campaign at any
time, for any reason. The Advertiser accepts that Radio Diamond may also alter its radio
programming schedule over holiday periods. If the radio sponsorship element of the
Campaign is to be cancelled, suspended or its radio programming schedule altered,
Radio Diamond will endeavour to give the Advertiser prior notice.
13.2. The Advertiser must give Radio Diamond 3 months’ written notice, to be sent by
recorded delivery, to cancel any sponsorship, during which time it will continue to pay
Radio Diamond in accordance with clause 6. - GENERAL
14.1. In confirming its order (whether directly or indirectly) for the delivery of the
Campaign pursuant to this Agreement, the Advertiser is indicating its acceptance of the
terms set out herein.
14.2 Except as set out in these Conditions, no variation of the Agreement shall be
effective unless it is in writing and signed by the parties (or their authorised
representatives).
14.3 If any provision or part-provision of the Agreement is or becomes invalid, illegal or
unenforceable, it shall be deemed deleted, but that shall not affect the validity and
enforceability of the rest of this Agreement.
14.4. A waiver of any right or remedy under the Agreement or by law is only effective if
given in writing and shall not be deemed a waiver of any subsequent right or remedy. A
failure or delay by a party to exercise any right or remedy provided under the
Agreement 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 Agreement or by
law shall prevent or restrict the further exercise of that or any other right or remedy.
14.5. The Advertiser may not assign transfer, mortgage, charge, subcontract, delegate,
declare a trust over or deal in any other manner with any of its rights and obligations
under this Agreement in whole or in part.
14.6. The Agreement constitutes the whole agreement between Radio Diamond and the
Advertiser concerning its subject matter and supersedes all previous agreements
relating to the same. Each party acknowledges that in entering into the Agreement it
does not rely on and shall have no remedies in respect of any statement, representation,
assurance or warranty (whether made innocently or negligently) that is not set out in
the Agreement.
14.7 If there is any conflict between these terms and conditions and the Order
Confirmation, the Order Confirmation shall prevail.
14.8 Unless otherwise specified in these Conditions, any notice or other communication
given to a party under or in connection with the Agreement shall be in writing and shall
be delivered by hand or by pre-paid first-class post or other next working day delivery
service at its registered office (if a company) or its principal place of business (in any
other case). Any notice or communication shall be deemed to have been received (i) if
delivered by hand, at the time the notice is left at the proper address; or (ii) if sent by
pre-paid first-class post or other next working day delivery service, at 9.00 am on the
second business day after posting.
14.9. A person who is not a party to this Agreement shall have no rights to enforce any
of its terms whether under the Contracts (Rights of Thirds Parties) Act 1999, or
otherwise.
14.10. This Agreement and any dispute or claim arising out of or in connection with it or
its subject matter or formation (including non-contractual disputes or claims) shall be
construed under and governed by the law of England and Wales and the parties submit
to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or
claim arising out of or in connection with this agreement or its subject matter or
formation (including non-contractual disputes or claims).