WALTONS PUBLICATIONS LIMITED – ADVERTISERS TERMS & CONDITIONS
1.1 Definitions. In these Conditions, the following definitions apply:
“Advertisement”; the advertisement to be placed in the Publication as requested by the Advertiser
“Advertiser”; the person or firm who purchases the Services from the Publisher (including a properly authorised agent acting on behalf of the person or firm).
"Advertisers Materials"; has the meaning set out in clause 4.1 (c)
"Advertisement Specification"; any specification for the Advertisement, including any logos or images, that is agreed in writing by the Advertiser and Publisher.
"Business Day"; a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Commencement Date"; has the meaning set out in clause 2.2.
"Conditions"; these terms and conditions as amended from time to time in accordance with clause 12.7.
"Contract"; the contract between the Publisher and the Advertiser for the Services.
“Editorial”; The editorial to be placed in the Publication as requested by the Advertiser
"Force Majeure Event"; has the meaning given to it in Clause 11
"Intellectual Property Rights"; patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including 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
"Order"; the Advertiser's written acceptance of the Publisher's quotation which can be either a signed order form, by email confirming acceptance of quotation, or by any other method that may be agreed or in use from time to time.
“Publications” the periodical that the Advertisement or Editorial will be placed in.
"Publisher"; Waltons Publications Limited registered in England and Wales with company number 09037940.
“Services”; the publishing of the Advertisement or Editorial in the Publications including where appropriate, the preparation and creation of the artwork for the Advertisement and/or copywriting for the Editorial;
1.2 "Construction". In these Conditions, the following rules apply :
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Advertiser to have an Advertisement or Editorial published in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Publisher issues written acceptance of the Order at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 The Contract constitutes the entire agreement between the parties. The Advertiser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Publisher which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Publisher and any illustrations or descriptions of the Publications presented to the Advertiser by the Publisher are for the sole purpose of giving an approximate idea of the Publications. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Advertiser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Publisher shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 The Publisher shall provide the Services to the Advertiser in accordance with the Conditions.
3.2 The Publisher shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. The Publisher shall not be liable for any delays in the distribution or printing of the Publication.
3.3 The Publisher shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Publisher shall notify the Advertiser in any such event.
3.4 The Publisher warrants to the Advertiser that the Services will be provided using reasonable care and skill.
4. Advertiser's obligations and Approval of Services
4.1 The Advertiser shall:
(a) ensure that the terms of the Order and (if submitted by the Advertiser) the Advertisement Specification are complete and accurate;
(b) co-operate with the Publisher in all matters relating to the Services;
(c) provide the Publisher with such information and materials (“Advertiser Materials”) as the Publisher may reasonably require to supply the Services, and ensure that such information is accurate in all material respects including grammar and spelling; and
(d) within five working days of the date of the Order provide the Publisher full details of the Advertisement or Editorial.
4.2 Following receipt of the details of the Advertisement or Editorial, the Publisher shall forward to the Advertiser a proof facsimile of the Advertisement or Editorial by email. The electronic delivery receipt received by the Publisher shall be deemed proof of delivery to the Advertiser.
4.3 Unless the Advertiser notifies the Publisher by returning an amended proof within five working days from the date of posting then the Advertisement or Editorial shall be deemed to have been accepted by the Advertiser. The Publisher may, at their absolute discretion choose whether to publish the Advertisement or Editorial, or they may choose to withhold the Advertisement or Editorial until the Advertiser has given their full approval.
4.4 If within five working days of the date of the Order the Advertiser does not supply the Publisher full details of the Advertisement or Editorial then the Publisher shall, at their own absolute discretion be entitled to prepare and publish an Advertisement or Editorial on the Advertiser's behalf based on the terms of the Order or Advertisement Specification, but otherwise in such form as they see fit.
4.5 If the Publisher's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Advertiser or failure by the Advertiser to perform any relevant obligation ("Advertiser Default"):
(a) the Publisher shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Advertiser remedies the Advertiser Default, and to rely on the Advertiser Default to relieve it from the performance of any of its obligations to the extent the Advertiser Default prevents or delays the Publisher's performance of any of its obligations;
(b) the Publisher shall not be liable for any costs or losses sustained or incurred by the Advertiser arising directly or indirectly from the Publisher's failure or delay to perform any of its obligations as set out in this clause 4.5 and
(c) the Advertiser shall reimburse the Publisher on written demand for any costs or losses sustained or incurred by the Publisher arising directly or indirectly from the Advertiser Default.
5. Charges and payment
5.1 The price for the Services shall be the price set out in the Order.
5.2 In respect of Services, the Publisher shall invoice the Advertiser on or at any time after Publications have been released.
5.3 The Advertiser shall pay each invoice submitted by the Publisher:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Publisher, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Advertiser under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by the Publisher to the Advertiser, the Advertiser shall, on receipt of a valid VAT invoice from the Publisher, pay to the Publisher such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Advertiser fails to make any payment due to the Publisher under the Contract by the due date for payment (“Default Payment”), then the Advertiser shall pay the interest on the overdue amount at the rate of 5% per annum above Barclay's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Advertiser shall pay the interest together with the overdue amount.
5.6 The Publisher shall also be entitled to recover from the Advertiser, all reasonable legal fees incurred in connection with the recovery of the Default Payment, irrespective of whether or not Court proceedings are issued.
5.7 The Advertiser shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Publisher may, without limiting its other rights or remedies, set off any amount owing to it by the Advertiser against any amount payable by the Publisher to the Advertiser.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Publisher. For the avoidance of doubt this includes any Intellectual Property Rights in the design, layout, text, logo, graphics and photographs contained within the Advertisement or Editorial unless already owned by a third party.
6.2 The Advertiser acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Advertiser's use of any such Intellectual Property Rights is conditional on the Publisher obtaining a written licence from the relevant licensor on such terms as will entitle the Publisher to license such rights to the Advertiser.
6.3 No reproduction of the Advertisement, Editorial or any part thereof is permitted without the Publishers written permission.
7. Advertisers Indemnity
7.1 The Advertiser shall indemnify the Publisher against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other professional costs and expenses) suffered or incurred by the Publisher arising out of or in connection with any claim made against the Publisher for actual or alleged infringement of a third party's intellectual property rights or any claim made against the Publisher for actual or alleged defamation arising out of or in connection with the supply or use of the Advertisers Materials;
7.2 If any third party makes a claim, or notifies an intention to make a claim, against the Publisher which may reasonably be considered likely to give rise to a liability under this indemnity ("Claim"), the Publisher shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Advertiser, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Advertiser;
(c) give the Advertiser and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Publisher, so as to enable the Advertiser and its professional advisers to examine them and to take copies (at the Publisher's expense for the purpose of assessing the Claim; and
(d) be deemed to have given the Advertiser sole authority to avoid, dispute, compromise or defend the Claim.
7.3 Nothing in this clause shall restrict or limit the Publisher's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
A party ("receiving party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party ("disclosing party"), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Publisher's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1:
(a) the Publisher shall under no circumstances whatever be liable to the Advertiser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ; and
(b) the Publisher's total liability to the Advertiser in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Advertiser for the Services.
9.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10.1 Where the Contract is an ongoing contract for the Services, unless the Contract is for a fixed term, then without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than three months' written notice.
10.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply];
(c) the other party 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 (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party 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  days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(b) to clause 10.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party's financial position deteriorates to such an extent that in the Publisher's opinion the Advertiser's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, the Publisher may terminate the Contract with immediate effect by giving written notice to the Advertiser if the Advertiser fails to pay any amount due under this Contract on the due date for payment.
10.4 Without limiting its other rights or remedies, the Publisher may suspend the supply of Services under the Contract or any other contract between the Advertiser and the Publisher if the Advertiser fails to pay any amount due under this Contract on the due date for payment, the Advertiser becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(m), or the Publisher reasonably believes that the Advertiser is about to become subject to any of them.
10.5 On termination of the Contract for any reason:
(a) the Advertiser shall immediately pay to the Publisher all of the Publisher's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Publisher shall submit an invoice, which shall be payable by the Advertiser immediately on receipt;
(b) the Advertiser shall return all of the Publisher Materials and any Deliverables which have not been fully paid for. If the Advertiser fails to do so, then the Publisher may enter the Advertiser's premises and take possession of them. Until they have been returned, the Advertiser shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. Force majeure
11.1 For the purposes of this Contract, "Force Majeure" Event means an event beyond the reasonable control of the Publisher including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Publisher or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Publishers or subcontractors.
11.2 The Publisher shall not be liable to the Advertiser as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Publisher from providing any of the Services for more than two weeks, the Publisher shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Advertiser.
12.1 Assignment and other dealings.
(a) The Publisher may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Advertiser shall not, without the prior written consent of the Publisher, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
(b) A notice or other communication (except as covered by Clause 4.2) shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Publisher.
12.8 Governing law. 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 governed by and construed in accordance with the law of England and Wales.
12.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).